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Canada’s Unit Guide (1990) notes that the 1949 Geneva Conventions “impose an obligation on all nations which have ratified them to search for and try all persons who committed or ordered to be committed grave breaches of the Conventions”.

Parties to the conflict shall take such measures as may be necessary to suppress and punish all breaches of [the 1949 Geneva Convention III]. If a breach amounts to a grave breach all persons responsible therefor, or having ordered such acts, shall, regardless of their nationality, be liable to be tried by any party to [the 1949 Geneva Convention III]. They may also be handed over by the latter for trial by any other party to [the 1949 Geneva Convention III] able to prosecute effectively.

Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 10-6, § 52.

The manual also provides:

At the request of a party to the conflict, an enquiry shall be instituted in a manner to be decided between the interested parties, concerning any alleged violation of the Geneva Conventions. If a violation is established, parties to the conflict must put an end to it and punish those responsible with the least possible delay.

Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 15-3, § 18.

The manual further states: “States have the obligation to repress grave breaches (i.e., ensure perpetrators are accused and tried) and to take measures necessary to suppress (i.e., bring to an end) all other violations.”

Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-2, § 11.

In addition, the manual states:

37. The Criminal Code of Canada contains several provisions that allow Canadian courts to assume jurisdiction over and try alleged war criminals in a wide variety of circumstances.

38. Any state into whose hands a person who has allegedly committed a grave breach falls is entitled to institute criminal proceedings, even though that state was neutral during the conflict in which the offence was alleged to have been committed. Since 1945, it has been generally accepted that if a state is unwilling to institute its own proceedings, it may hand the person over to a claimant state on presentation of prima facie evidence that the alleged offender has committed the offence in question. …

43. The four Geneva Conventions obligate the parties thereto to enact such legislation as may be necessary to provide effective sanctions for persons committing or ordering any of the acts which would constitute grave breaches under the Conventions. They also provide that the parties will take the measures necessary to suppress any violation of the Conventions not amounting to grave breaches.

Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, pp. 16-5 and 16-6, §§ 37–38 and 43.

Canada’s Code of Conduct (2001) states:

It is essential that any alleged breaches of these rules [of the Code of Conduct] and the Law of Armed Conflict be investigated rapidly in as impartial a manner as possible. An impartial investigation will not only assist in bringing violators to justice, thereby maintaining discipline, but will also provide the best opportunity to clear anyone who has not acted improperly. In most cases that investigation will be carried out by the military police or National Investigation Service.

Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):

1014. Responsibility

1. The responsibility for the treatment of PWs rests upon the Detaining Power. Failure to properly care for PWs may make that power liable to pay compensation, while the individuals responsible for such ill-treatment or for allowing it to occur, are liable to be tried as war criminals.

…

1038. Breaches of PW Convention

1. Parties to the conflict shall take such measures as may be necessary to suppress and punish all breaches of [the 1949 Geneva Convention III]. If a breach amounts to a grave breach all persons responsible therefore, or having ordered such acts, shall, regardless of nationality, be liable to be tried by any party to [the 1949 Geneva Convention III]. They may also be handed over by the latter for trial by any other party to [the 1949 Geneva Convention III] able to prosecute effectively.

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1014 and 1038.

In its chapter entitled “Preventative and enforcement measures and the role of protecting powers”, the manual states:

At the request of a party to the conflict, an enquiry shall be instituted in a manner to be decided between the interested parties, concerning any alleged violation of the Geneva Conventions. If a violation is established, parties to the conflict must put an end to it and punish those responsible with the least possible delay.

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1508.

In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states:

1607. Grave breaches of the 1949 Geneva Conventions

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3. States have the obligation to repress grave breaches (i.e., ensure perpetrators are accused and tried) and to take measures necessary to suppress (i.e., bring to an end) all other violations.

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1616. Canadian law

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2. The Criminal Code of Canada contains several provisions that allow Canadian courts to assume jurisdiction over and try alleged war criminals in a wide variety of circumstances …

1617. International law

1. Any state into whose hands a person who has allegedly committed a grave breach falls is entitled to institute criminal proceedings, even though that state was neutral during the conflict in which the offence was alleged to have been committed. Since 1945, it has been generally accepted that if a state is unwilling to institute its own proceedings, it may hand the person over to a claimant state on presentation of prima facie evidence that the alleged offender has committed the offence in question.

…

6. The four Geneva Conventions obligate the parties thereto to enact such legislation as may be necessary to provide effective sanctions for persons committing or ordering any of the acts which would constitute grave breaches under the Conventions. They also provide that the parties will take the measures necessary to suppress any violation of the Conventions not amounting to grave breaches.

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1607.3, 1616.2 and 1617.1 and 6.

In its chapter on non-international armed conflicts, the manual states:

1725. Breaches of Protocol II

1. When [the 1977 Additional Protocol II] was adopted, states refused to make violations of its provisions regarding criminal offences. Certain nations were reluctant to allow other states to interfere in their internal affairs by way of trials for war crimes alleged to have taken place in their national territory.

2. Today, however, many provisions of [the 1977 Additional Protocol II] are nevertheless recognized under customary International Law as prohibitions that entail individual criminal responsibility when breaches are committed during internal armed conflicts.

3. Violations of many provisions of [the 1977 Additional Protocol II] committed by individual members of a party to an internal conflict are thus criminal offences under International Law. Such crimes may be tried by international tribunals such as the International Criminal Tribunal for Rwanda.

Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1725.

Canada’s Prisoner of War Handling and Detainees Manual (2004) states:

All four [1949 Geneva Conventions] and [the 1977 Additional Protocol I] impose an obligation on all parties to search for and bring to trial those who have committed any grave breaches of the [1949 Geneva Conventions and the 1977 Additional Protocol I].

Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 103.1.

Canada’s Code of Conduct After Capture Manual (2004) states:

When it appears that violations of the LOAC or other international agreements or laws have been perpetrated against detainees or PWs [prisoners of war] whilst held by a detaining power, the recovery team shall also include MP [Military Police] investigators who will coordinate the collection of physical evidence and victim statements. MP assisted by appropriate legal advisors, shall coordinate and facilitate the participation of any other international investigative authority as may be required.

Canada, The Code of Conduct After Capture for the Canadian Forces, B-GJ-005-110/FP-010, National Defence Headquarters, 28 October 2004, § 504.

Canada’s Code of Conduct (2005) states:

It is essential that any alleged breaches of these rules [of the Code of Conduct] and the Law of Armed Conflict be investigated rapidly in as impartial a manner as possible. An impartial investigation will not only assist in bringing violators to justice, thereby maintaining discipline, but will also provide the best opportunity to clear anyone who has not acted improperly. In most cases that investigation will be carried out by the military police or National Investigation Service.

(2) Where a person is alleged to have committed an offence [in the meaning of the above], proceedings in respect of that offence may, whether or not the person is in Canada, be commenced in any territorial division in Canada and that person may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.

Canada’s Crimes against Humanity and War Crimes Act (2000) provides that for offences within Canada “every person is guilty of an indictable offence who commits (a) genocide; (b) a crime against humanity; or (c) a war crime”.

Canada, Crimes against Humanity and War Crimes Act, 2000, Article 4.

The Act adds that for offences outside Canada, “every person who, either before or after coming into force of this section, commits outside Canada (a) genocide, (b) a crime against humanity, or (c) a war crime is guilty of an indictable offence and may be prosecuted”.

Canada, Crimes against Humanity and War Crimes Act, 2000, Article 6.

The Act states: “War crime means an act or omission committed during an armed conflict that … constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts.” It further specifies that the crimes described in Articles 6, 7 and 8(2) of the 1998 ICC Statute are “crimes according to customary international law”.

Canada, Crimes against Humanity and War Crimes Act, 2000, Article 4(3) and (4).

In the Brocklebank case in 1996, Canada’s Court Martial Appeal Court acquitted a Canadian soldier accused of torture and negligent performance of a military duty in respect of acts committed while serving as a member of the peacekeeping mission in Somalia. The Court held that there was no evidence that the soldier had formed the necessary mens rea to commit the offences charged. It was further held that no armed conflict existed in Somalia at the relevant time, nor were the Canadian forces to be considered as a party to the conflict, as they were engaged in a peacekeeping mission. As a result, the Court concluded that neither the 1949 Geneva Conventions nor the Canadian Unit Guide to the Geneva Conventions were applicable.

In 2009, in the Munyaneza case, Canada’s Superior Court of Québec found a Rwandan national who had been residing in Canada guilty of genocide, crimes against humanity and war crimes in committed Rwanda in 1994. The Court held:

II - TRIAL

[8] Mr. Munyaneza was charged under the Crimes Against Humanity and War Crimes Act (the “Act”), adopted by the Canadian Parliament in 2000 (S.C. 2000, c. 24). He is the first to be prosecuted under that legislation in Canada.

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IV – THE LAW

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3. THE CRIMES AGAINST HUMANITY AND WAR CRIMES ACT (“the Act”)

3.1 History

[58] On June 29, 2000, the Act was assented to and placed in Chapter 24 of the Statutes of Canada for the year 2000. Its complete title is the Act respecting genocide, crimes against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, and to make consequential amendments to other Acts.

[59] The Act came into force on October 23, 2000.

[60] It is aimed at implementing the Rome Statute of the International Criminal Court, adopted on July 17, 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (the “Rome Statute”).

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[65] In contrast to all Canadian laws that punish offences committed on Canadian territory, the Act provides that a person who has committed abroad a crime of genocide, a crime against humanity or a war crime can be prosecuted in Canada if he or she resides here.

[66] One of the avowed purposes of the Act is to fight against the impunity of war criminals, like that which existed after the Second World War.

In 2013, in the Peters case, Canada’s Immigration and Refugee Protection Board rejected an immigration request on grounds of complicity in crimes against humanity in Libya. The Board stated:

For the purposes of this hearing section[s] 6 and 7 of the Crimes Against Humanity and War CrimesAct are the relevant [ones] as they deal with offences committed outside of Canada and I will make reference to the relevant sections in respect of this case.

Subsection 6(1) indicates that every person who either before or after coming into force of this section commits outside of Canada, a) genocide, b) a crime against humanity, or c) [a] war crime, is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.

…

I would also note that the Criminal Code of Canada has incorporated this definition into the legislation and it is an established principle in international [and] domestic law that people who have personally [committed] war crimes, crimes against humanity, crimes against peace, and other international crimes, would generally be held accountable for those crimes.

Canada, Immigration and Refugee Board, Peters case, Record of an Admissibility Hearing under the Immigration and Refugee Protection Act, 29 January 2013, pp. 7–8.

In 2013, in the Ezokola case, Canada’s Supreme Court allowed the appeal against the applicant’s exclusion from refugee protection on grounds of complicity in crimes against humanity in the Democratic Republic of the Congo, remitting the matter to the Refugee Protection Division of the Immigration and Refugee Board. Regarding implementation of the 1998 ICC Statute in Canada’s domestic legislation, the Court stated: “Canada is not only party to the [1998 ICC] Rome Statute, Parliament has implemented the treaty into domestic law through the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24.”

According to the Report on the Practice of Canada, following the report of the Canadian Commission of Inquiry on War Criminals in 1987, a section for war crimes was created in the Canadian Police and in the Ministry of Justice. A special unit was also established in the Ministry of Immigration to search for immigrants alleged to have committed war crimes or crimes against humanity. The report states that this reflects the belief held by the Canadian authorities in the necessity of setting up appropriate legal mechanisms to meet Canadian obligations regarding the search for war criminals on Canadian territory.

Report on the Practice of Canada, 1998, Chapter 6.3.

In an annual report issued in 2003 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:

The IOG [Interdepartmental Operations Group] ensures that the Government of Canada has properly addressed all allegations of war crimes and crimes against humanity against Canadian citizens or persons present in Canada. Another of its purposes is to ensure that Canada complies with its international obligations. This includes the investigation, prosecution and extradition or surrender of war criminals, and the investigation of the most serious crimes against humanity, as well as cooperation with the international tribunals. In order to meet this objective, the RCMP [Royal Canadian Mounted Police], with the support of DOJ [Department of Justice], investigate allegations involving reprehensible acts that could lead to a possible criminal prosecution. CIC [Department of Citizenship and Immigration] pursues the application of remedies under the Immigration and Refugee Protection Act (IRPA) and Citizenship Act, in cooperation with DOJ in all instances when these matters proceed to court.

Canada, Sixth Annual Report, Canada’s Program on Crimes against Humanity and War Crimes, 2002–2003, p. 2.

In an annual report issued in 2004 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:

Under Canada’s War Crimes Program, war criminals and those responsible for crimes against humanity are not welcome in Canada, whether the crimes were committed during World War II or more recently …

…

The Canadian Government can choose from several approaches in dealing with war criminals, including investigation and criminal prosecution in Canada, extradition to foreign governments, surrender to international tribunals, denial of visas outside Canada or of admission to Canada, exclusion from refugee protection in Canada, revocation of citizenship, admissibility hearings and removal from Canada. The RCMP [Royal Canadian Mounted Police], with the support of DOJ [Department of Justice], investigates allegations of reprehensible acts that could lead to a possible criminal prosecution under the
Crimes Against Humanity and War Crimes Act. The CBSA [Canada Border Services Agency] pursues remedies under the Immigration and Refugee Protection Act (IRPA). CIC [Citizenship and Immigration Canada] refuses to issue immigrant or temporary resident visas to persons involved in war crimes or crimes against humanity. In the case of Canadian citizens, CIC can seek revocation of citizenship under the Citizenship Act, in cooperation with DOJ and the RCMP.

Canada, Seventh Annual Report, Canada’s Program on Crimes against Humanity and War Crimes, 2003–2004, p. 2.

In an annual report issued in 2005 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:

Canada’s War Crimes Program upholds the government’s position that Canada is not a safe haven for anyone involved or complicit in crimes against humanity, war crimes or genocide …

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When a potential war criminal does manage to enter Canada or is found already living in Canada, the partners in the War Crimes Program have recourse to a number of enforcement measures, including … criminal investigation and prosecution, and revocation of citizenship.

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Criminal investigation and prosecution

The RCMP [Royal Canadian Mounted Police] War Crimes Section and the DOJ [Department of Justice] Crimes Against Humanity and War Crimes Section work together to assess allegations referred for criminal investigation under the Crimes Against Humanity and War Crimes Act. In November 2004, the RCMP and the DOJ signed a Guiding Principles agreement in order to enhance the ability to conduct criminal investigations.

Modern war crimes

The RCMP is responsible for criminal investigations, with legal support from the DOJ. These investigations target individuals in Canada who are alleged to have participated in crimes against humanity or war crimes anywhere in the world. The RCMP receives allegations of war crimes and crimes against humanity from a variety of sources including victims, witnesses, foreign governments, local ethnic communities, non-government organizations, open source information and media releases as well as allegations resulting from refugee, immigration and citizenship applications.

Canada, Eighth Annual Report, Canada’s Program on Crimes against Humanity and War Crimes, 2004–2005, pp. 1 and 3–4.

In an annual report issued in 2006 on its Crimes against Humanity and War Crimes Program, the Government of Canada stated:

If persons suspected of involvement in atrocities do arrive in Canada or are found living in Canada, the program partners assess the situation to determine the most appropriate remedy. The partners have complementary roles in applying these remedies: criminal proceedings under the Crimes Against Humanity and War Crimes Act, on which the RCMP [Royal Canadian Mounted Police] and the DOJ [Department of Justice] work closely together; enforcement under the IRPA [Immigration and Refugee Protection Act] led by the CBSA [Canada Border Services Agency], including deportation and denial of access to and exclusion from refugee protection; and citizenship revocation proceedings under the Citizenship Act handled by CIC [Citizenship and Immigration Canada]. The CBSA only deals with modern cases. The DOJ leads the development of World War II cases with the assistance of the RCMP. The DOJ also handles extradition and surrender to international tribunals under the Extradition Act.

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When a suspected war criminal enters Canada or is already living in Canada, a number of enforcement measures may be used, including exclusion from refugee status, findings of inadmissibility followed by deportation, extradition, surrender to international tribunals, criminal investigation and prosecution, and revocation of citizenship.

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The RCMP is responsible for criminal investigations, with legal support from the DOJ, and targets individuals in Canada alleged to have participated in crimes against humanity, war crimes or genocide. The RCMP responds to allegations from witnesses, foreign governments, community groups, non-governmental organizations and open source information.

…

The DOJ and the RCMP review the results of these investigations to decide whether to pursue criminal prosecution. Under the Crimes Against Humanity and War Crimes Act, the Attorney General of Canada must consent to charges before they are laid. The DOJ is responsible for leading the prosecutions under the Act.

In some cases, the partners determine that it would be more appropriate to pursue proceedings under the IRPA or the Citizenship Act, in which case the RCMP and the DOJ provide the results of their investigations to the CBSA or CIC.

…

The program partners have continued to examine allegations of modern war crimes, including referrals from CIC/CBSA and complaints received from the public, other countries and international institutions, to determine whether individuals should be referred for criminal investigation. In order for an allegation to be added to the RCMP/DOJ inventory, the allegation must disclose personal involvement or command responsibility, the evidence pertaining to the allegation must be corroborated, and the necessary evidence must be able to be obtained in a reasonably uncomplicated and rapid fashion. As there are limited resources available for criminal investigation, the partners have redefined the test for inclusion in the RCMP/DOJ modern war crimes inventory in order to recognize the narrowed strategic focus for criminal investigation and prosecution – one of the most difficult and expensive remedies available under the program. The RCMP/DOJ inventory has been re-examined and the number of files has been reduced from 100 to approximately 60. The files removed from the RCMP/DOJ inventory will be dealt with by using remedies under the IRPA or the Citizenship Act. The need for the CBSA and/or CIC to investigate and finalize these files will increase processing times on all files, including those already in process.

…

The DOJ is responsible for handling allegations of crimes against humanity, war crimes and genocide related to World War II. Investigations are pursued with the assistance of the RCMP. These investigations are complex, often taking several years to complete, and require the expertise of experienced lawyers, analysts, historians and RCMP officers. Historical research is used to build each case and to compile potential witness lists. Most witnesses live overseas, mainly in central and eastern Europe. The DOJ must first seek the cooperation of foreign countries before lawyers and RCMP officers can conduct interviews.

Following an investigation, counsel, historians and RCMP investigators determine the most appropriate course of proceedings, whether criminal prosecution under the Crimes Against Humanity and War Crimes Act or civil proceedings under the IRPA or the Citizenship Act. With the passage of time, the age and availability of witnesses, and the challenges of gathering documentary evidence, most of the World War II-related cases will proceed by way of civil proceedings.

In World War II cases, the Government pursues legal remedies only in cases where there is evidence of direct involvement or complicity in war crimes, crimes against humanity or genocide. A person may be considered complicit if the person is aware of the commission of war crimes or crimes against humanity and contributes directly or indirectly to their occurrence. Membership in an organization responsible for atrocities can establish complicity if the organization is one with a limited brutal purpose, such as a death squad.

Canada, Ninth Annual Report, Canada’s Program on Crimes against Humanity and War Crimes, 1 April 2005–31 March 2006, pp. 1, 3, 10 and 11.

In an annual report issued in 2007 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:

… Canada’s War Crimes Program has evolved over the years but its primary goal remains unchanged: to deny safe haven in Canada to war criminals, that is, individuals who may have been either directly involved or complicit in the commission of war crimes, crimes against humanity or genocide.

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If persons suspected of involvement in atrocities do arrive in Canada or are found to be living in Canada, the program partners assess the situation to determine the most appropriate remedy. Remedies include the following: criminal proceedings jointly administered by the DOJ [Department of Justice] and the Public Prosecution Service of Canada (PPSC) based on investigations conducted by the RCMP [Royal Canadian Mounted Police] under the Crimes Against Humanity and War Crimes Act; enforcement of the IRPA [Immigration and Refugee Protection Act] led by the CBSA [Canada Border Services Agency], including denial of access to and exclusion from refugee protection and deportation; citizenship revocation led by CIC [Citizenship and Immigration Canada] and the DOJ; and extradition to foreign states and surrender to international tribunals under the Extradition Act, led by the DOJ.

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On the international stage, Canada plays a leadership role in global efforts to hold perpetrators of human rights abuses accountable for their crimes through cooperation with other countries and international tribunals …

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While the intent of the program is to allow partners to choose from a range of complementary remedies to pursue in order to ensure that Canada is not a safe haven to perpetrators of human and international rights violations, partners reserve criminal investigation and prosecution, the most expensive options, to a fraction of the cases. In turn, partners diligently seek more cost-effective immigration processes such as early detection and prevention of entry into Canada to ensure that war criminals do not enter the country.

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When a suspected war criminal enters Canada or is already living in Canada, a number of enforcement measures may be used, including exclusion from refugee status, findings of inadmissibility followed by deportation, extradition to foreign states, surrender to international tribunals, criminal investigation and prosecution, and the revocation of citizenship …

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The RCMP is responsible for criminal investigations, with legal and research support from the DOJ, and targets individuals in Canada alleged to have participated in crimes against humanity, war crimes or genocide before their arrival in Canada. The RCMP responds to allegations from witnesses, foreign governments, community groups, non-governmental organizations and open source information.

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The DOJ and the RCMP review the results of these investigations to decide whether to pursue criminal prosecution. Under the Crimes Against Humanity and War Crimes Act, the Attorney General of Canada must consent to charges before they are laid. The DOJ and the PPSC are responsible for bringing this matter forward under the Act.

In some cases, the partners determine that it would be more appropriate to pursue proceedings under the IRPA or the Citizenship Act, in which case the RCMP and the DOJ provide the results of their investigations to the CBSA or CIC.

…

The program partners have continued to examine allegations of modern war crimes, including referrals from CIC and the CBSA and complaints received from the public, other countries and international institutions, to determine whether they should be referred for criminal investigation. In order for an allegation to be added to the RCMP/DOJ inventory, among other considerations, the allegation must disclose personal involvement or command responsibility, and the evidence pertaining to the allegation must be corroborated and obtainable in a reasonable and rapid fashion …

The DOJ is continuing to handle allegations of crimes against humanity, war crimes and genocide related to the Second World War, with the assistance of RCMP investigators.

In Second World War cases, the Government of Canada has several legal remedies at its disposal: criminal prosecution under the Crimes Against Humanity and War Crimes Act or civil proceedings under the IRPA or the Citizenship Act. Given the passage of time, the age and availability of witnesses, and the challenges of gathering evidence, most of these cases proceed by way of civil proceedings.

In an annual report issued in 2008 on its Program on Crimes Against Humanity and War Crimes, the Government of Canada stated:

Introduction

… The primary goal of the War Crimes Program is to deny safe haven in Canada to war criminals or those suspected of being directly involved or complicit in the commission of war crimes, crimes against humanity or genocide.

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Canada’s War Crimes Program – A Model of Collaboration

In the mid-1980s, the DOJ [Department of Justice] and the RCMP [Royal Canadian Mounted Police] created specialized war crimes sections to investigate allegations related to war crimes and crimes against humanity from the Second World War. Subsequently, CIC [Citizenship and Immigration Canada] established a war crimes unit of its own in the mid-1990s. In 1998, the War Crimes Program was created as an interdepartmental initiative between CIC, the DOJ and the RCMP, with the CBSA [Canada Border Services Agency] becoming a partner in the program upon its inception in December 2003. This collaboration marked a significant development in Canada’s battle against impunity and, coupled with the implementation of stronger legislation (the Crimes Against Humanity and War Crimes Act and the Immigration and Refugee Protection Act), has advanced Canada as a global leader in the effort to hold war criminals accountable for their crimes.

The intent of the War Crimes Program is to provide a range of complementary remedies to ensure that Canada is not a safe haven for perpetrators of human and international rights violations. Remedies are restricted by available funding. Criminal investigations and prosecution, widely seen as essential to international justice, are the most expensive options and only pursued in a fraction of the cases. Therefore partners diligently seek the more cost-effective remedies such as early detection and denial of entry into Canada. However, this does not resolve the issue of potential war criminals already residing in the country.

War Crimes Program Activities from April 1, 2007, to March 31, 2008

Canada uses a holistic approach in its domestic and international fight against impunity of persons involved in war crimes, crimes against humanity or genocide. The Program has a broad arsenal of nine legislative remedies at its disposal, including the ability to prevent war criminals from entering Canada through the Denial of Visas Overseas and Denials at Port of Entry; and methods to deal with war criminals already in Canada, using Exclusion; Admissibility Hearings; Removals; Revocation of Citizenship; Extradition; Surrender to International Criminal Tribunals; and Criminal Investigations and Prosecution. …

Remedies to Prevent Entry of War Criminals into Canada

Denial of Visas Overseas and Denials at Port of Entry

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Remedies for War Criminals in Canada

The War Crimes Program may proceed with any of the seven remaining remedies to deal with war criminals who have entered Canada: Exclusion of refugee status in the context of a refugee claim; Admissibility Hearings; Removal; Revocation of Citizenship; Extradition; Surrender to International Tribunals; and Criminal Investigations and Prosecution.

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Revocation of Citizenship

CIC, DOJ and the RCMP work closely together in citizenship revocation cases and have several legal remedies at their disposal including criminal prosecution under the Crimes Against Humanity and War Crimes Act and civil proceedings under the IRPA or the Citizenship Act. CIC has 18 active modern-day war crimes cases to review for possible revocation of citizenship …

The DOJ continues to handle allegations of crimes against humanity, war crimes and genocide related to the Second World War …

The Minister of Citizenship and Immigration commenced proceedings to revoke Mr. Michael Seifert’s citizenship in Federal Court on November 13, 2001 …

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Extradition and Surrender to International Criminal Tribunals

In 1999, the Extradition Act was amended to allow Canada to enter into agreements with other countries for extradition on a case-by-case basis and to allow for surrender of Canadians to international tribunals …

Italy requested the extradition of Michael Seifert, who was convicted in absentia by an Italian Military Tribunal in November 2000 for war crimes related to the Second World War. Mr. Seifert was surrendered to Italy in February 2008. Citizenship revocation proceedings against Mr. Seifert are ongoing.

Criminal Investigations and Prosecution

DOJ and the Public Prosecution Service of Canada (PPSC) cooperate in PPSC led war crimes prosecutions, based on major investigations conducted by the RCMP War Crimes Section under the Crimes Against Humanity and War Crimes Act.

International missions: During the 2007–2008 fiscal year, 11 international missions were conducted by the RCMP War Crimes Section to investigate suspected war criminals residing in Canada. The investigators traveled to Rwanda, Serbia, Croatia, Germany, the Netherlands, Bosnia, Honduras and the United States to further their investigations.

Canada, Eleventh Annual Report, Canada’s Program on Crimes against Humanity and War Crimes, 1 April 2007–31 March 2008, pp. 1–6.

In 2010, in its sixth periodic report to the Committee against Torture, Canada stated:

Article 7

Prosecution of persons alleged to have committed torture

44. As noted in Canada’s Fifth Report, an interdepartmental group, the Program Coordinating Operations Committee (PCOC) (formerly entitled the Interdepartmental Operations Group), coordinates investigation of allegations of crimes against humanity and war crimes under Canada’s War Crimes Program. The Committee ensures that the Government of Canada has properly addressed all allegations of war crimes and crimes against humanity against Canadian citizens or persons present in Canada. It also ensures that Canada complies with its international obligations.

45. A major activity of the PCOC has been the review of all crimes against humanity and war crimes files, determining the appropriate course of action, and channelling the files to the appropriate departmental authority for action. There are regular reviews to examine new files that have come to the attention of program partners. The PCOC meets on a monthly basis (or more often when required). Decisions are made by consensus and the chair rotates between the partner organizations.

46. If persons suspected of involvement in atrocities do arrive in Canada or are found to be living in Canada, the program partners assess the situation to determine the most appropriate remedy. Remedies include the following:

(a) Criminal proceedings that are based on investigations conducted by the RCMP [Royal Canadian Mounted Police] under the Crimes Against Humanity and War Crimes Act …;

(b) Enforcement of the IRPA [Immigration and Refugee Protection Act], including denial of access to and exclusion from refugee protection and removal proceedings;

(c) Citizenship revocation;

(d) Extradition to foreign states and surrender to international tribunals under the Extradition Act …

47. In order to be added to the inventory for criminal investigation, the allegation must disclose personal involvement or command responsibility, the evidence pertaining to the allegation must be corroborated, and the necessary evidence must be able to be obtained in a reasonable and rapid fashion. As there are resources available for criminal investigation, the partners have redefined the test for inclusion in the modern war crimes inventory in order to recognize the narrowed strategic focus for criminal investigation and prosecution – one of the most difficult and expensive remedies available under the program. The inventory for criminal investigation has been re-examined and the number of files has been reduced. The files removed from the inventory will be dealt with by using remedies under the IRPA or the Citizenship Act … The need for these files to be investigated and finalized will increase processing times on all files, including those already in process.

48. While the Committee has expressed some concern about the low number of prosecutions for terrorism and torture offences, the Government of Canada notes that prosecution is but one way in which Canada can impose sanctions on war criminals and those who have participated in crimes against humanity. The decision to utilize a particular remedy is carefully considered and is assessed in accordance with the Government’s policy that Canada not be a safe haven for war criminals. The decision to use one or more of these mechanisms is based on a number of factors which include: the different requirements of the courts in criminal and immigration/refugee cases to substantiate and verify evidence; the resources available to conduct the proceeding; and Canada’s obligations under international law.

49. There were two new prosecutions that were underway but not yet completed during the period covered by this report. On October 19, 2005, Désiré Munyaneza, a Rwandan national, was arrested regarding his alleged participation in the events in the region of Butare in Rwanda between April 1, 1994 and July 3, 1994. Mr. Munyaneza was charged with two counts of genocide, two counts of crimes against humanity and three counts of war crimes pursuant to the Crimes Against Humanity and War Crimes Act.

In 2011, in a statement before the UN Security Council during an open debate on the protection of civilians in armed conflict, the deputy permanent representative of Canada stated:

Finally, Mr. President, accountability for those who violate international law by targeting civilian populations is fundamental. Accountability not only ensures that perpetrators are punished for their crimes, but it can also serve as an effective deterrent against future crimes. Canada has been a consistent supporter of the international courts and tribunals that strive to hold individuals to account and contribute to the prevention of such crimes … Strengthening accountability mechanisms in national jurisdictions is also key, as it is States that bear the primary responsibility for investigating and prosecuting violations. Recent convictions of high-ranking army officers for mass rape in the Democratic Republic of Congo are providing a useful example and Canada commends these efforts. Individuals responsible for these crimes must be brought to justice, including those implicated through command responsibility.

Canada, Statement by the deputy permanent representative of Canada before the UN Security Council during an open debate on the protection of civilians in armed conflict, 10 May 2011.

In 2011, in an address to the House of Commons on the situation in Libya, the Minister of Foreign Affairs of Canada stated:

Canada has been vocal in condemning the targeting of civilians by the Qadhafi regime, and the impact of that regime’s actions on the hundreds of thousands of people who have been trapped in Libya or forced to flee its borders … In the face of this blatant disregard for both human rights and international law, Canada has demanded … that perpetrators of crimes are brought to justice. We have been particularly disgusted by abhorrent reports [of] torture and sexual violence as weapons against the Libyan population. Such actions are international crimes and may be war crimes or crimes against humanity. Canada calls for a full and impartial investigation of these allegations so that the perpetrators can be brought to justice.

Canada, House of Commons, Address by the Minister of Foreign Affairs to the House of Commons on the situation in Libya, 14 June 2011.

In 2011, in a statement before the UN Security Council during an open debate on children and armed conflict, made on behalf of the Group of Friends of Children and Armed Conflict, the deputy permanent representative of Canada stated:

Although the Friends Group applauds the action taken by the Security Council so far in strengthening accountability for persistent perpetrators of grave violations against children, we call for further decisive action in three ways against such perpetrators … Third, we remain concerned with the accountability gap and call … upon national authorities and all parties concerned to take appropriate legal actions against persistent perpetrators.

Canada, Statement by the deputy permanent representative of Canada before the UN Security Council during an open debate on children and armed conflict, made on behalf of the Group of Friends of Children and Armed Conflict, 12 July 2011.

In 2011, in a statement before the UN Security Council during a meeting on the protection of civilians in armed conflict, the deputy permanent representative of Canada stated:

Violations of human rights and international humanitarian law, including rape as a weapon of war and other acts of sexual violence, continue to occur at an alarming rate. Those who commit them must be held to account for their actions.

…

It is the primary responsibility of every state to investigate and prosecute those suspected of genocide, crimes against humanity and war crimes. The recent conviction of four former military officers for their role in a massacre of civilians during the armed conflict in Guatemala – the first such conviction against military officers in that country – is an example of national accountability mechanisms at work. This underlines the need for states to fulfil their obligations to investigate and prosecute persons suspected of serious international crimes.

Canada, Statement by the deputy permanent representative of Canada before the UN Security Council during a meeting on the protection of civilians in armed conflict, 9 November 2011.

In 2012, in a statement before the UN Security Council during an open debate on women, peace and security, the deputy permanent representative of Canada stated:

Canada strongly supports the Security Council’s recognition of the need to take effective measures to prevent and respond to conflict-related sexual violence, including rape as a weapon of war. …

… Canada calls on the Security Council to increase pressure on States to hold perpetrators of sexual violence to account.

Canada, Statement by the deputy permanent representative of Canada before the UN Security Council during an open debate on women, peace and security, 23 February 2012.

In 2012, in its written replies to the issues raised by the Committee against Torture with regard to Canada’s sixth periodic report, Canada stated:

180. Canada’s War Crimes Program is based on the dual underlying purposes of ensuring that Canada will not become a safe haven for persons involved in war crimes, genocide or crimes against humanity, as well as making an effective contribution to the global effort to reduce and eventually eliminate impunity for such crimes. A committee composed of members of each department of the War Crimes Program reviews and scrutinises all allegations of genocide, crimes against humanity and war crimes, including torture, to ensure compliance with existing and emerging international obligations to extradite or prosecute. In order for a case to be investigated and/or prosecuted through the criminal justice system, a combination of factors needs to be present:

- the necessary evidence can be obtained in a reasonably uncomplicated and speedy fashion.

181. While the criminal investigation and prosecution of war crimes committed abroad is resource-intensive and will therefore only be pursued where the above criteria are satisfied, the ability to conduct criminal investigations and to prosecute is an important element of the War Crimes Program. In some cases, a criminal justice response is the most appropriate action and sends a strong message to Canadians and the international community that the Government of Canada does not tolerate impunity for war criminals or for persons who have committed crimes against humanity or genocide. War Crimes prosecutions, including prosecutions for torture, are closely managed by the PPSC. For example, a National co-ordinator monitors all such prosecutions, there is a special process for the assignment of prosecutors to such cases and special rules to ensure management and oversight apply.

182. Should a file not meet the selection criteria for being pursued through the criminal process, the War Crimes Program considers immigration measures, including the following:

- Preventing suspected war criminals from reaching Canada by refusing their immigrant, refugee or visitor applications abroad; and

- Detecting those who have managed to come to Canada and taking the necessary steps to: exclude them from the refugee determination process; prevent them from becoming Canadian citizens; revoke their citizenship should they be detected after acquiring that status; and, ultimately, remove these individuals from Canada.

183. In some cases it is more desirable to remove an individual suspected of having a role in war crimes and/or crimes against humanity through immigration enforcement means so that they may face justice in their country of citizenship. These instances arise when there has been a change in country conditions and there has been recognition of legal reform (e.g., independence of the judiciary) and capacity building within the justice system, and, as a result, these countries are capable of carrying out efficient and effective prosecutions of suspected criminals.

Canada, Written replies by the Government of Canada to the Committee against Torture concerning the list of issues to be taken up in connection with the sixth periodic report of Canada, 2012, §§ 180–183.

In 2012, during the presentation of Canada’s sixth report to the Committee against Torture, the legal advisor of the Department of Foreign Affairs and International Trade of Canada stated:

With respect to the obligation to prosecute crimes of torture and to assist other States in this regard, Canada is committed to the principle that it will not become a safe haven for persons involved in war crimes, genocide or crimes against humanity, as well as to making an effective contribution to the global effort to strengthen accountability for such crimes. Canada has demonstrated its commitment in this regard through recent prosecutions of persons accused of having committed genocide and crimes against humanity in Rwanda. Canada also believes that, wherever possible, people accused of such terrible crimes should face justice in the countries in which the crimes occurred. In cases where this is not possible, international courts and tribunals and other efforts to hold perpetrators accountable for serious international crimes may be used.

Canada, Statement by the legal advisor at the Department of Foreign Affairs and International Trade, entitled “Presentation of Canada’s Sixth Report to the Committee against Torture”, 21 May 2012, p. 3.

In 2012, in a statement before the UN Security Council during an open debate on the protection of civilians in armed conflict, the permanent representative of Canada stated:

Around the world, women and girls continue to be victims of sexual violence, including rape as a weapon of war. Hospitals and health care workers are subject to attacks. And people in desperate need are denied lifesaving humanitarian assistance. In such circumstances, UN Member States, and particularly the Security Council, must redouble their efforts to protect the most vulnerable, and ensure that those responsible for violations are brought to justice.

Canada, Statement by the permanent representative of Canada before the UN Security Council during an open debate on the protection of civilians in armed conflict, 25 June 2012.

In 2013, in a statement before the UN Security Council during an open debate on women, peace and security, the permanent representative of Canada stated:

Madame President, on behalf of the Government of Canada, I wish to thank the Rwandan Presidency for convening this open debate on conflict-related sexual violence.

…

Madame President, perpetrators of sexual violence must be held accountable. We support prosecution for those who have perpetrated or who have a command responsibility for these crimes.

Canada, Statement by the permanent representative of Canada before the UN Security Council during an open debate on women, peace and security, 17 April 2013, p. 2.

In 2013, in a statement before the UN Security council during a debate on children and armed conflict, made on behalf of the Friends of Children and Armed Conflict, the permanent representative of Canada stated:

Holding perpetrators to account [for] grave violations against children continues to be rare as indicated by the Secretary-General in his annual report, and yet is a crucial element towards protecting children’s rights. The Friends encourage Member States to strengthen national accountability mechanisms and judicial capacities, including by developing child protection legislations that criminalize all grave violations against children. In those cases where national authorities are unwilling or unable to hold perpetrators to account, due to lack of capacity or resources for instance, international justice mechanisms, including through the work of the International Criminal Court, and ad hoc and mixed tribunals, can and should play a complementary role.

Canada, Statement by the permanent representative of Canada before the UN Security council during a debate on children and armed conflict, made on behalf of the Friends of Children and Armed Conflict, namely Andorra, Australia, Austria, Belgium, Benin, Canada, Chile, Costa Rica, Croatia, the Czech Republic, Denmark, Estonia, Finland, Germany, Ghana, Guatemala, Hungary, Italy, Japan, Jordan, Liechtenstein, Mali, Mexico, Namibia, Netherlands, New Zealand, Norway, Peru, Portugal, San Marino, Slovenia, Slovakia, South Africa, the Republic of Korea, Sweden, Switzerland, Tanzania and Uruguay, 17 June 2013, p. 2.

In 2013, in a statement before the UN Security Council during an open debate on women, peace and security, the permanent representative of Canada stated:

Primary responsibility for the prevention of sexual violence in conflict lies with national governments as well as with the leadership of non-state armed groups. Where these leaders fail to respond to sexual violence, or are party to the crimes, they must be held to account. Often however governments lack the capacity to respond adequately. Conflict significantly weakens national justice systems, resulting in a limited number of perpetrators facing justice. In such cases, member states could request the assistance of trained experts for investigations and prosecutions and to strengthen the capacity of local law enforcement.

Canada, Statement by the permanent representative of Canada before the UN Security Council during an open debate on women, peace and security, 24 June 2013, p. 1.

In 2013, in a statement before the UN Security Council during an open debate on the protection of civilians in armed conflict, the minister counsellor of the Permanent Mission of Canada stated:

We condemn the targeting of journalists, media professionals and associated personnel and recall that media equipment and installations constitute civilian objects within international law as affirmed by UN Security Council Resolution 1738 (2006). We must continue to work to bring the perpetrators of such heinous acts to justice. Those who deliberately target civilians with violence must be held to account.

Canada, Statement by the minister counsellor of the Permanent Mission of Canada before the UN Security Council during an open debate on the protection of civilians in armed conflict, 17 July 2013.

In 2013, in a statement during the 68th Session of the UN General Assembly, the Minister of Foreign Affairs of Canada stated: “In the context of war, rape and serious sexual violence are war crimes. … The war criminals involved must be identified, pursued, prosecuted and punished.”

Canada, Address by the Minister of Foreign Affairs during the 68th Session of the UN General Assembly, 30 September 2013.

In 2013, in a statement during the Twelfth Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, the ambassador of Canada stated: “We believe that those responsible for serious international crimes must be held to account, for which national and, as a last resort, international mechanisms could potentially play a role.”

Canada, Statement by the ambassador of Canada during the Twelfth Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, 21 November 2013, p. 2.

(i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks;

…

(2) The objectives of this Act with respect to refugees are

…

(h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals.

…

35. (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for

(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity andWar Crimes Act;

(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the CrimesAgainst Humanity and War Crimes Act; …

…

98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.

In the Ramirez case before the Appeal Division of the Federal Court of Canada in 1992, the appellant appealed a decision of the Refugee Division of the Immigration and Refugee Board (Refugee Division). The Refugee Division had excluded the appellant from refugee protection under the Geneva Refugee Convention, finding he had been involved in the commission of international crimes after having enlisted in the armed forces of El Salvador in 1985. The Court, dismissing the appeal, stated:

This case is unusual in that the Refugee Division found that the claimant had established that he had a well-founded fear of persecution by reason of his political opinion, but nevertheless excluded him from protection by virtue of Section F of Article I of the United Nations Convention Relating to the Status of Refugees (“the Convention”). The definition of “Convention refugee” in s. 2(1) of the Act states that it does not include any person to whom the Convention does not apply pursuant to section E or F of Article I thereof …

The relevant part of section F of Article I of the Convention … is as follows:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

In the case at bar the crime in question is either a war crime or a crime against humanity. It is certainly not a crime against peace, and would normally be included in crimes against humanity … However, since we are, on the facts under consideration, concerned with crimes committed in the course of what is either a civil war or a civil insurrection, and nothing hangs on whether one category or the other is the more relevant, I have chosen to employ the term “international crimes” to refer indifferently to both classes of crime.

…

In the case at bar the most controversial legal issue has to do with the extent to which accomplices, … as well as principal actors, in international crimes should be subject to exclusion, since the Refugee Division held in part that the appellant was guilty “in aiding and abetting in the commission of such crimes” … , and it is on this finding that, as will become apparent, the respondent’s case must rest.

The Convention provision refers to “the international instruments drawn up to make provisions in respect of such crimes.” One of these instruments is the London Charter of the International Military Tribunal, Article 6 of which provides in part …:

Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

I believe this evidence is decisive of the inclusion of accomplices as well as principal actors, but leaves to be answered the very large question as to the extent of participation required for inclusion as an “accomplice”.

…

… Clearly no one can “commit” international crimes without personal and knowing participation.

What degree of complicity, then, is required to be an accomplice or abettor? A first conclusion I come to is that mere membership in an organization which from time to time commits international offenses is not normally sufficient for exclusion from refugee status. Indeed, this is in accord with the intention of the signatory states, as is apparent from the post-war International Military Tribunal already referred to. Grahl-Madsen … states:

It is important to note that the International Military Tribunal excluded from the collective responsibility “persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the State for membership, unless they were personally implicated in the commission of acts declared criminal by Article 6 of the Charter as members of the organization. Membership alone is not enough to come within the scope of these declarations” …

It seems apparent, however, that where an organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts.

Similarly, mere presence at the scene of an offence is not enough to qualify as personal and knowing participation (nor would it amount to liability under s. 21 of the Canadian Criminal Code), though, again, presence coupled with additional facts may well lead to a conclusion of such involvement. In my view, mere on-looking, such as occurs at public executions, where the on-lookers are simply by-standers with no intrinsic connection with the persecuting group, can never amount to personal involvement, however humanly repugnant it might be. However, someone who is an associate of the principal offenders can never, in my view, [be] said to be a mere on-looker. Members of a participating group may be rightly considered to be personal and knowing participants, depending on the facts.

At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it. Such a principle reflects domestic law (e.g., s. 21(2) of the Criminal Code), and I believe is the best interpretation of international law.

…

One must be particularly careful not to condemn automatically everyone engaged in conflict under conditions of war. Probably most combatants in most wars in human history have seen acts performed by their own side which they would normally find reprehensible but which they felt utterly powerless to stop, at least without serious risk to themselves. While the law may require a choice on the part of those ordered actually to perform international crimes, it does not demand the immediate benevolent intervention, at their own risk, of all those present at the site. Usually, law does not function at the level of heroism.

In my view, it is undesirable to go beyond the criterion of personal and knowing participation in persecutorial acts in establishing a general principle. The rest should be decided in relation to the particular facts.

…

I find it clear from … passages in the appellant’s testimony, as well as from the documentary evidence, that the torture and killing of captives had become a military way of life in El Salvador. It is to the appellant’s credit that his conscience was greatly troubled by this, so much so that during his second term of enlistment, after three times unsuccessfully requesting a discharge …, he eventually deserted in November, 1987 …, in considerable part at least because of his bad conscience. I have also to say, however, that I think it is not to his credit that he continued to participate in military operations leading to such results over such a lengthy period of time. He was an active part of the military forces committing such atrocities, he was fully aware of what was happening, and he could not succeed in disengaging himself merely by ensuring that he was never the one to inflict the pain or pull the trigger.

On a standard of “serious reasons for considering that … he has committed a crime against peace, a war crime, or a crime against humanity,” I cannot see the appellant’s case as even a borderline one. He was aware of a very large number of interrogations carried out by the military, on what may have been as much as a twice-weekly basis (following some 130–160 military engagements) during his 20 months of active service. He could never be classed as a simple on-looker, but was on all occasions a participating and knowing member of a military force, one of whose common objectives was the torture of prisoners to extract information. This was one of the things his army did, regularly and repeatedly, as he admitted. He was a part of the operation, even if he personally was in no sense a “cheering section.” In other words, his presence at this number of incidents of persecution, coupled with his sharing in the common purpose of the military forces, clearly constitutes complicity. We need not define, for purposes of this case, the moment at which complicity may be said to have been established, because this case is not to my mind near the borderline. The appellant was no innocent by-stander: he was an integral, albeit reluctant, part of the military enterprise that produced those terrible moments of collectively deliberate inhumanity.

…

The appellant did not argue the defence of superior orders, and his arguments as to duress and remorse are insufficient for exoneration. On duress, Hathaway … states, summarizing the draft Code of Offences Against the Peace and Security of Mankind, in process by the International Law Commission since 1947:

Second, it is possible to invoke [as a defence] coercion, state of necessity, or force majeure. Essentially, this exception recognizes the absence of intent where an individual is motivated to perpetrate the act in question only in order to avoid grave and imminent peril. The danger must be such that “a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong”. Moreover, the predicament must not be of the making or consistent with the will of the person seeking to invoke the exception. Most important, the harm inflicted must not be in excess of that which would otherwise have been directed at the person alleging coercion …

The appellant urged, I could find that the duress under which the appellant found himself might be sufficient to justify participation in lesser offences, but I would have to conclude that the harm to which he would have exposed himself by some form of dissent or non-participation was clearly less than the harm actually inflicted on the victims. The appellant himself testified as follows as to the punishment for desertion:

A: Well, the punishment is starting with very, very hard training exercises and then after that they will throw you in jail for five to ten years.

This is admittedly harsh enough punishment, but much less than the torture and death facing the victims of the military forces to which he adhered.

As for the remorse he no doubt now genuinely feels, it cannot undo his persistent and participatory presence.

In the Moreno case before the Appeal Division of the Federal Court of Canada in 1993, the appellants appealed a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (Board). The Board had excluded the appellants from refugee protection under the Geneva Refugee Convention, based on findings that the male applicant, recruited into the armed forces of El Salvador in 1988, “had committed crimes against humanity during the four months he served in the Salvadoran army”, inter alia by serving as a guard while prisoners were tortured.

(A) Did the Board err in law by failing to adopt a narrow construction of the exclusion clause?

The thrust of the appellant’s argument is that the Board, and this Court, should construe narrowly the exclusion clause in view of the possible persecution awaiting persons who might otherwise be declared Convention refugees. I recognize that this view is echoed by all of the leading commentators and reinforced in the UNHCR Handbook; see Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, January 1988) paragraph 149, page 35; G. S. Goodwin-Gill, The Refugee in International Law, Oxford: Clarendon Press, 1983, pages 61–62 (referred to in Canada (Minister of Employment and Immigration) v. Mehmet, [1992] 2 F.C. 598 (C.A.), per Marceau J.A., at pages 607-608); Lorne Waldman, Immigration Law and Practice, Toronto: Butterworths, 1992, at page 8.108; James C. Hathaway, The Law of Refugee Status, Toronto: Butterworths, 1991, pages 214–217; see also UNHCR Legal Project in Canada, Paper 5, paragraph 16, page 4.

As persuasive as the commentaries may be, I am bound to approach the application of the exclusion clause, first, by reference to the existing jurisprudence of this Court and, second, by reference to the clear intent of the signatories to the Convention. Where, however, there is an unresolved ambiguity or issue, the construction most agreeable to justice and reason must prevail.

…

(D) Did the Board err in law by determining that the male appellant’s acts or omissions amounted to a crime against humanity?

The success of this appeal now hinges on the resolution of two questions. First, is the appellant’s membership in a military organization responsible for inhumane acts against members of the civilian population, in and of itself, sufficient justification for invoking the exclusion clause? In other words, is the appellant “guilty by association”? The second question is more particularized. Is the appellant’s participation as a guard in the torture of a prisoner a sufficient basis to deem him an “accomplice” and therefore subject to the application of the exclusion clause? The question is premised upon the understanding that an “accomplice” is as culpable as the “principal”[,] “the one who pulls the trigger. The alternative is to classify the appellant an “innocent by-stander”. I shall deal with the questions in the order posed.

1) Guilt By Association

It is well settled that mere membership in an organization involved in international offences is not sufficient basis on which to invoke the exclusion clause; see Ramirez, at page 317, and Laipenieks v. I.N.S., 750 F. 2d 1427 (9th Cir. 1985), at page 1431. An exception to this general rule arises where the organization is one whose very existence is premised on achieving political or social ends by any means deemed necessary. Membership in a secret police force may be deemed sufficient grounds for invoking the exclusion clause; see Naredo and Arduengo v. Minister of Employment and Immigration (1990), 37 F.T.R. 161 (F.C.T.D.), but seeRamirez at pages 318 et seq. Membership in a military organization involved in armed conflict with guerrilla forces comes within the ambit of the general rule and not the exception.

2) Accomplice v. Innocent By-stander

In addressing the second question (participation as a guard), it is helpful to outline the basic principles which inform the criminal law of Canada. While I do not suggest that the task of the Board is to arrive at a conclusion which is fully supported by the application of criminal law principles, direction may be taken from the words of Mr. Justice Dickson (as he then was) writing for a majority of the Court in Dunlop and Sylvester v. The Queen, [1979] 2 S.C.R. 881, in which he considered the offence of aiding and abetting (at pages 891 and 896):

Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch on enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit.

…

… I have great difficulty in finding any evidence of anything more than mere presence and passive acquiescence. Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principal offender’s intention to commit the offence or attendance for the purpose of encouragement. There was no evidence that while the crime was being committed either of the accused rendered aid, assistance, or encouragement to the rape. … There was no evidence of any positive act or omission to facilitate the unlawful purpose.

While mere presence at the scene of a crime (torture) is not sufficient to invoke the exclusion clause, the act of keeping watch with a view to preventing the intended victim from escaping may well attract criminal liability. In the instant case, however, the appellant could not have assisted in the prisoner’s escape because he was never in possession of a key to the cell. In any event, a determination of the appellant’s complicity should not hinge on possession of a key. In a similar vein, it remains to be determined whether the appellant should have attempted to prevent his superior officers from continuing with their acts of torture, as was inferred by the Board. The incisive reasoning of MacGuigan J.A. in Ramirez disposes readily of this argument (at pages 319–320):

One must be particularly careful not to condemn automatically everyone engaged in conflict under conditions of war. Probably most combatants in most wars in human history have seen acts performed by their own side which they would normally find reprehensible but which they felt utterly powerless to stop, at least without serious risk to themselves. While the law may require a choice on the part of those ordered actually to perform international crimes, it does not demand the immediate benevolent intervention, at their own risk, of all those present at the site. Usually, law does not function at the level of heroism.

Applying the criteria set out by Mr. Justice Dickson in Dunlop and Sylvester v. The Queen to the facts of the present appeal, I am driven to the conclusion that the appellant’s acts or omissions would not be sufficient to attract criminal liability as a matter of law. The appellant did not possess any prior knowledge of the acts of torture to be perpetrated. Nor can it be said that the appellant rendered any direct assistance or encouraged his superior officers in the commission of an international crime …

The complicity of the appellant cannot be decided on the basis of criminal law provisions alone. As was stated in Ramirez (at page 315), “[a]n international convention cannot be read in the light of only one of the world’s legal systems.” I turn now to principles of refugee law which, not surprisingly, overlap those of criminal law.

It is settled law that acts or omissions amounting to passive acquiescence are not a sufficient basis for invoking the exclusion clause. Personal involvement in persecutorial acts must be established. In this regard the reasoning in Ramirez is both binding and compelling (at page 318):

At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it.

At page 320, MacGuigan J.A. concluded:

In my view, it is undesirable to go beyond the criterion of personal and knowing participation in persecutorial acts in establishing a general principle. The rest should be decided in relation to the particular facts.

Applying the above reasoning, we must determine whether the appellant’s conduct satisfies the criterion of “personal and knowing participation in persecutorial acts”. Equally important, however, is the fact that complicity rests on the existence of a shared common purpose as between “principal” and “accomplice”. In other words, mens rea remains an essential element of the crime. In my opinion, a person forcibly conscripted into the military, and who on one occasion witnessed the torture of a prisoner while on assigned guard duty, cannot be considered at law to have committed a crime against humanity.

On a superficial level, it could be maintained that the appellant knowingly assisted or otherwise participated in a persecutorial act. What is absent from that analysis is any evidence supporting the existence of a shared common purpose. However, the evidence does establish that the appellant disassociated himself from the actual perpetrators by deserting the army within a relatively short period after his forcible enlistment. In the circumstances, the appellant’s presence at the scene of a crime is tantamount to an act of passive acquiescence. Accordingly, there is no legal basis on which to rest the application of the exclusion clause.

In reaching this conclusion, I am influenced by one commentator’s view that the closer a person is involved in the decision-making process and the less he or she does to thwart the commission of inhumane acts, the more likely criminal responsibility will attach; see M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, Dordrecht: Martinus Nijhoff Publishers, 1992, at page 343. Of course, the further one is distanced from the decision makers, assuming that one is not a “principal”, then it is less likely that the required degree of complicity necessary to attract criminal sanctions, or the application of the exclusion clause, will be met. I take it for granted that 16-year-old foot soldiers will not be accorded the same legal treatment as those who command the war.

In reaching the conclusion that the acts of the appellant fail to meet the threshold established in Ramirez, I do not find it necessary to resort to the absolute defences often raised to absolve a claimant of culpability (e.g. duress). In my view, the requisite element of mens rea is simply lacking. As MacGuigan J.A. stated [at page 320], once the criterion of personal and knowing participation is accepted, “[t]he rest should be decided in relation to the particular facts.” The facts in Ramirez are materially different from those relevant to the appellant’s refugee claim.

Mr. Ramirez was seventeen when he enlisted in the Salvadoran army. Unlike the appellant, he enlisted voluntarily for a period of two years and then re-enlisted for a further term. He deserted the army after 33 months of service, during which time he had been promoted through the ranks to sergeant. Moreover, he had participated in excess of 100 engagements and witnessed the torture and killing of as many prisoners (a fact described by the Court as a military way of life in El Salvador) …

In Ramirez the Court was satisfied “beyond a reasonable doubt” that the claimant had been personally and knowingly involved in persecutorial acts. The fact that Mr. Ramirez underwent an ideological conversion and then fled both the army and his country were not acts which by themselves could absolve him of complicity in crimes against humanity. In my view, what distinguishes the present case from Ramirez is the duration of the appellant’s military service, his military rank and the passive role which he played in what clearly was a crime committed by ranking officers.

In the Sivakumar case before the Appeal Division of the Federal Court of Canada in 1993, the Court, dismissing the appeal, stated:

The appellant, Thalayasingam Sivakumar, is a Tamil and a citizen of Sri Lanka. Even though he was found by the Refugee Division to have had a well-founded fear of persecution at the hands of the Sri Lankan government on the basis of his political opinion, the Refugee Division decided to exclude him on the basis of section F(a) of Article 1 of the United NationsConvention Relating to the Status of Refugees … as someone who had committed crimes against humanity … The issue on this appeal is whether the appellant was properly held responsible for crimes against humanity alleged to have been committed by the Liberation Tigers of Tamil Eelam (LTTE) even though he was not personally involved in the actual commission of the criminal acts.

The Law

The definition of Convention refugee is found in subsection 2(1) of the Immigration Act, R.S.C., 1985, c. I-2, as amended by R.S.C., 1985 (4th Supp.), c. 28, s. 1:

2. …

Convention refugee means any person who

(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i) is outside the country of the person’s nationality and is unable, or by reason of that fear, is unwilling to avail himself of the protection of that country, or

(ii) not having a country of nationality, is outside the country of the person’s former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

(b) has not ceased to be a Convention refugee by virtue of subsection (2),

but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act.

The portion of section F of Article 1 which is relevant to this appeal states:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.

The Refugee Division concluded that because of the appellant’s leadership position within the LTTE and his continuing participation in the organization, he must be held responsible for crimes against humanity committed by the LTTE …

1. Complicity

There has been some recent jurisprudence in this Court on the question of who is responsible for war crimes or crimes against humanity (see Naredo and Arduengo v. Minister of Employment and Immigration (1990), 37 F.T.R. 161 (F.C.T.D.); Ramirezv. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.); Rudolph v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 653 (C.A.); and Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.)). It is clear that if someone personally commits physical acts that amount to a war crime or a crime against humanity, that person is responsible. However, it is also possible to be liable for such crimes “to ‘commit’ them” as an accomplice, even though one has not personally done the acts amounting to the crime (see MacGuigan J.A. in Ramirez, supra). In defining who would be considered an accomplice under section F, MacGuigan J.A. indicated that, although certainly relevant, it would be unwise to rely exclusively on Canadian criminal law concepts of aiding and abetting, since international instruments are not to be interpreted according to the legal system of any one country. He considered, in addition to Canadian law, case law of other countries and texts of learned authors and concluded that the starting point for complicity in an international crime was “personal and knowing participation.”

This is essentially a factual question that can be answered only on a case-by-case basis, but certain general principles are accepted. It is evident that mere by-standers or on-lookers are not accomplices. As MacGuigan J.A. stated in Ramirez, supra, at page 317:

In my view, mere on-looking, such as occurs at public executions, where the on-lookers are simply by-standers with no intrinsic connection with the persecuting group, can never amount to personal involvement, however humanly repugnant it might be.

However, a person who aids in or encourages the commission of a crime, or a person who willingly stands guard while it is being committed, is usually responsible. Again, this will depend on the facts in each case. For example, in Ramirez, supra, the claimant had enlisted in the army voluntarily and had witnessed the torture and killing of many prisoners. Due to the circumstances of the claimant’s participation in the military, the Court found that he shared the military’s purpose in committing these acts and that therefore he was an accomplice rather than an on-looker. A similar conclusion was reached in Naredo, supra, in which the applicants acted as guards during the torturing of prisoners. Muldoon J.’s reasoning in Naredo, supra, is questionable in the light of subsequent jurisprudence since he found that watching torture was as culpable as committing torture. However, his conclusion that the claimants were accomplices was probably correct on the facts given that the claimants were willing members of the intelligence service of the Chilean police who were part of a team responsible for the interrogation and torture of prisoners. By way of comparison, in Moreno, supra, the claimant had been conscripted into the Salvadoran army at the age of 16. He was ordered to stand guard outside a cell in which a prisoner was interrogated and brutally tortured. However, the facts disclosed that the claimant was really a by-stander who had no power to intervene in the interrogation, did not share the military’s purpose in perpetrating the torture, and deserted from the army as soon as possible. Thus, the claimant was found not to have been an accomplice in this act of torture. (See also Dunlop and Sylvesterv. The Queen, [1979] 2 S.C.R. 881, with respect to the domestic law of parties to an offence.)

In Ramirez, supra, MacGuigan J.A. explained the test for complicity in cases of secondary parties, at page 318:

At bottom, complicity rests in such cases, I believe, on the existence of a shared common purpose and the knowledge that all the parties in question may have of it.

Moreover, those involved in planning or conspiring to commit a crime, even though not personally present at the scene, might also be accomplices, depending on the facts of the case. Additionally, a commander may be responsible for international crimes committed by those under his command, but only if there is knowledge or reason to know about them. (See Rikhof, J. “War Crimes, Crimes Against Humanity and Immigration Law” (1993), 19 Imm. L.R. (2d) 18, at page 49.)

Another type of complicity, particularly relevant to this case is complicity through association. In other words, individuals may be rendered responsible for the acts of others because of their close association with the principal actors. This is not a case merely of being “known by the company one keeps.” Nor is it a case of mere membership in an organization making one responsible for all the international crimes that organization commits (see Ramirez, at page 317). Neither of these by themselves is normally enough, unless the particular goal of the organization is the commission of international crimes. It should be noted, however, as MacGuigan J.A. observed:

“someone who is an associate of the principal offenders can never, in my view, be said to be a mere on-looker. Members of a participating group may be rightly considered to be personal and knowing participants, depending on the facts” (Ramirez, supra, at page 317).

In my view, the case for an individual’s complicity in international crimes committed by his or her organization is stronger if the individual member in question holds a position of importance within the organization. Bearing in mind that each case must be decided on its facts, the closer one is to being a leader rather than an ordinary member, the more likely it is that an inference will be drawn that one knew of the crime and shared the organization’s purpose in committing that crime. Thus, remaining in an organization in a leadership position with knowledge that the organization was responsible for crimes against humanity may constitute complicity.

In Crimes Against Humanity in International Criminal Law (1992), M. Cherif Bassiouni states, at page 345:

Thus, the closer a person is involved in the decision-making process and the less he does to oppose or prevent the decision, or fails to dissociate himself from it, the more likely that person’s criminal responsibility will be at stake.

In such circumstances, an important factor to consider is evidence that the individual protested against the crime or tried to stop its commission or attempted to withdraw from the organization. Mr. Justice Robertson noted this point in Moreno, supra, when he stated [at page 324]:

[T]he closer a person is involved in the decision-making process and the less he or she does to thwart the commission of inhumane acts, the more likely criminal responsibility will attach.

Of course, as Mr. Justice MacGuigan has written, “law does not function at the level of heroism” (Ramirez, supra, at page 320). Thus, people cannot be required, in order to avoid a charge of complicity by reason of association with the principal actors, to encounter grave risk to life or personal security in order to extricate themselves from a situation or organization. But neither can they act as amoral robots.

This view of leadership within an organization constituting a possible basis for complicity in international crimes committed by the organization is supported by Article 6 of the Charter of the International Military Tribunal Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, August 8, 1945, 82 U.N.T.S. 279] which defines crimes against peace, war crimes and crimes against humanity and then states:

Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

This principle was applied to those in positions of leadership in Nazi Germany during the Nuremberg Trials, as long as they had some knowledge of the crimes being committed by others within the organization. For example, the trial of Erhard Milch, United States Military Tribunal at Nuremberg, Law Reports of Trials of War Criminals, Vol. VII, page 27, involved an Inspector-General and a Field-Marshal in the German Air Force who was accused of committing war crimes and crimes against humanity in the form of illegal and appalling experiments carried out on German nationals as well as members of armed forces and civilians from countries at war with Germany. Though convicted of another charge, he was acquitted with respect to the experiments on the basis that, while the illegal experiments had been carried out by people under Milch’s command, Milch had not personally participated in or instituted the experiments, nor had he any knowledge that the experiments were being carried out.

It should be noted that, in refugee law, if state authorities tolerate acts of persecution by the local population, those acts may be treated as acts of the state (see, for example, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, at page 17). Similarly, if the criminal acts of part of a paramilitary or revolutionary non-state organization are knowingly tolerated by the leaders, those leaders may be equally responsible for those acts. Complicity by reason of one’s position of leadership within an organization responsible for international crimes is analogous to the theory of vicarious liability in torts, but the analogy is not altogether apt, since it is clear that, in the context of international crimes, the accused person must have knowledge of the acts constituting the international crimes.

To sum up, association with a person or organization responsible for international crimes may constitute complicity if there is personal and knowing participation or toleration of the crimes. Mere membership in a group responsible for international crimes, unless it is an organization that has a “limited, brutal purpose”, is not enough (Ramirez, supra, at page 317). Moreover, the closer one is to a position of leadership or command within an organization, the easier it will be to draw an inference of awareness of the crimes and participation in the plan to commit the crimes.

…

Decision

I conclude that, given the appellant’s own testimony as to his knowledge of the crimes against humanity committed by the LTTE, coupled with the appellant’s position of importance within the LTTE and his failure to withdraw from the LTTE when he had ample opportunities to do so, there are serious reasons for considering that the appellant was an accomplice in crimes against humanity committed by the LTTE. The evidence, both the appellant’s testimony and the documentary evidence, is such that no properly instructed tribunal could reach a different conclusion. Accordingly, I would dismiss the appeal.

In the Hinzman case before Canada’s Federal Court in 2006, the principal applicant, a former US Army soldier, challenged a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board) denying an application for refugee status. In its review of the Board’s decision the Court stated:

[43] Paragraph 171 of the [United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees provides that:

171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution. [emphasis added by Court]

[44] The Board found that when Canadian and international courts have considered this provision in order to determine whether an individual meets the definition of “Convention refugee”, it has almost invariably been the nature of the acts that the evading or deserting soldier would be expected to perform or be complicit in, rather than the legality of the conflict as a whole, that have dictated the result.

…

[72] Before the Board, Mr. Hinzman contended that if he were required to participate in offensive action in Iraq, potentially killing innocent civilians, he would be excluding himself as a Convention refugee or person in need of protection by virtue of section 98 of the Immigration and Refugee Protection Act. In such circumstances, Mr. Hinzman submitted that any punishment that he might receive for deserting would be persecutory per se.

[73] After reviewing the evidence adduced by Mr. Hinzman, the Board concluded that Mr. Hinzman had not shown that the United States had, either as a matter of deliberate policy or official indifference, required or allowed its combatants to engage in widespread actions in violation of international humanitarian law. Citing the decision of this Court in Popov v. Canada (Minister of Employment and Immigration) (1994),75 F.T.R. 90 (F.C.T.D.) the Board noted that isolated instances of serious violations of international humanitarian law will not amount to military activity that is condoned in a general way by the State.

[74] In coming to this conclusion, the Board considered the findings of a Human Rights Watch report that documented the killing of civilians by American forces in Iraq. While observing that there had been questionable deaths, the report acknowledged that the American military has taken steps to reduce civilian deaths, and to investigate specific incidents where deaths had occurred.

[75] The Board further noted that the use of “embedded” media representatives in Iraq indicated an attitude of openness and accountability on the part of the American military.

[76] Finally, the Board reviewed the evidence of United States Marine Corps Staff Sergeant Jimmy Massey, who served with Mr. Hinzman’s division in Iraq, and was involved in manning a vehicle checkpoint. The Board accepted Staff Sergeant Massey’s testimony that the standard operating procedure at such checkpoints tried to minimize harm to civilians.

[77] The Board thus concluded that Mr. Hinzman had failed to adduce sufficient evidence to establish that if deployed to Iraq, he would have personally been engaged in, been associated with, or been complicit in acts condemned by the international community as contrary to basic rules of human conduct.

…

[120] That is, the structure of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6 [Refugee Convention], including the exclusion grounds, requires an interpretation of paragraph 171 of the Handbook that would allow would-be refugees to avoid military actions that would make themselves “persecutors”, and thus excluded from protection under the Convention: von Sternberg, at page 133.

…

[122] Interpreting paragraph 171 of the Handbook in conjunction with the exclusion provisions of the Refugee Convention is the approach favoured by the Council of the European Union. As the English House of Lords observed in Sepet v. Secretary of State for the Home Department, [2003] 3 All E.R. 304, the Joint Position adopted by the Council of the European Union on the harmonised application of the term “refugee” is that refugee protection may be granted on the grounds of conscience in cases of desertion where the performance of the individual’s military duties would lead the person to participate in activities falling under the exclusion clauses in Article 1F of the Refugee Convention. (See Sepet, at paragraph 14.)

…

[124] Interpreting the provisions of paragraph 171 in this manner also accords with the preponderance of the Canadian jurisprudence on this issue. Perhaps the leading Canadian authority addressing this question is the decision of the Federal Court of Appeal in Zolfagharkhani.

[125] Zolfagharkhaniinvolved a claim for refugee protection by an Iranian Kurd who deserted the Iranian army because of the Iranian government’s intention to use chemical weapons in the internal war being waged against the Kurds. The use of chemical weapons had unquestionably been condemned by the international community as evidenced by international conventions such as the United Nations Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, March 26, 1975, [1975] Can. T.S. No. 12.

[126] Even though the applicant worked as a paramedic in the Iranian army, and would have thus not been directly responsible for the discharge of the chemical weapons, the Federal Court of Appeal observed that he could nevertheless be called upon to assist fellow soldiers unwittingly caught in the chemical clouds. As a result, Mr. Zolfagharkhani’s work as a paramedic would have been of material assistance in advancing the goals of the Iranian forces, by helping the violators of international humanitarian law deal with the side effects of the unlawful weapons.

[127] The Federal Court of Appeal then observed that this level of participation could arguably have led to the exclusion of Mr. Zolfagharkhani from refugee protection for having committed an international crime. As a consequence, the Court found he came within the provisions of paragraph 171 of the Handbook.

[128] The issue was revisited by the Federal Court of Appeal the following year in Diab v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1277 (QL). In Diab, the Court again allowed the appeal of a refugee claimant who refused to be involved in military activities which amounted to crimes against humanity.

[129] In Radosevic v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 74 (T.D.) (QL), this Court dismissed an application for judicial review on the basis that, on the evidence, it was unlikely that the claimant would personally have been called upon to commit atrocities.

[130] Thus these cases clearly establish that direct participation or complicity in military actions that are in violation of international humanitarian law will bring a refugee claimant within the exception contemplated by paragraph 171 of the Handbook. What is less clear is whether the mere participation of a foot-soldier in an illegal war of aggression will also allow a claimant to derive the benefit of the provision.

…

[166] When one is considering the case of a mere foot-soldier such as Mr. Hinzman, the focus of the inquiry should be on the law of jus in bello, that is, the international humanitarian law that governs the conduct of hostilities during an armed conflict. In this context, the task for the Board will be to consider the nature of the tasks that the individual has been, is, or would likely be called upon to perform “on the ground”.

…

[176] In this case, the Board did canvas the evidence before it in some detail. While recognizing that violations of international humanitarian law by American soldiers had occurred in Iraq and elsewhere, the Board also noted that the evidence revealed that civilians were not being deliberately targeted by the American military, and that incidents of human rights violations by American military personnel were investigated, and the guilty parties punished.

…

[188] Based upon the foregoing analysis, I am satisfied that, as a mere foot-soldier, Mr. Hinzman could not be held to account for any breach of international law committed by the United States in going into Iraq. As a result, in the circumstances of this case, the “type of military action” that is relevant to Mr. Hinzman’s claim, as that phrase is used in paragraph 171 of the Handbook, is the “on the ground” activities with which he would have been associated in Iraq.

[189] I have also found that the Board did not err in finding that the breaches of international humanitarian law that have been committed by American soldiers in Iraq do not rise to the level of being either systematic or condoned by the State. In addition, I have found that the Board did not err in finding that the applicants had failed to establish that Mr. Hinzman would himself have been called upon to commit breaches of international humanitarian law, had he gone to Iraq.

In the Hughey case before Canada’s Federal Court in 2006, the applicant, a former US Army soldier, challenged a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board) denying his application for refugee status. In its review of the Board’s decision, the Court stated:

[41] Paragraph 171 of the [United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees] provides that:

171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution. [emphasis added by Court]

[42] The Board found that when Canadian and international courts have considered this provision in order to determine whether an individual meets the definition of “Convention refugee”, it has almost invariably been the nature of the acts that the evading or deserting soldier would be expected to perform or be complicit in, rather than the legality of the conflict as a whole, that have dictated the result.

…

[68] Before the Board, Mr. Hughey contended that if he were required to participate in offensive action in Iraq, potentially killing innocent civilians, he would be excluding himself as a Convention refugee or person in need of protection by virtue of s. 98 of the Immigration and Refugee Protection Act. In such circumstances, Mr. Hughey submitted that any punishment that he might receive for deserting would be persecutory per se.

[69] The evidence adduced by Mr. Hughey included reports prepared by Human Rights Watch, Amnesty International, and the International Committee of the Red Cross regarding the conduct of American soldiers in Iraq. In addition, Mr. Hughey put evidence before the Board regarding conditions at the Guantanamo prison facility in Cuba, incidents of torture at the Abu Ghraib prison in Iraq, as well as two legal opinions prepared by the American Department of Justice (the “Gonzales opinions”), suggesting that the
Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, UN Doc. A/39/51, 1984, entered into force June 26, 1987, might not apply to the interrogation of ‘enemy combatants’ held by the United States.

[70] After reviewing the evidence adduced by Mr. Hughey, the Board found that the evidence fell short of establishing that the United States is engaged in military actions that are condemned by the international community as contrary to the rules of human conduct.

[71] While accepting that there had been instances where members of the American military in Iraq had engaged in serious violations of international humanitarian law, the Board observed that the military had investigated instances of alleged recklessness or indiscriminate use of force, and had taken disciplinary action, where appropriate.

…

[109] Interpreting paragraph 171 of the Handbook in conjunction with the exclusion provisions of the Refugee Convention is the approach favoured by the Council of the European Union. As the English House of Lords observed in Sepet and Another v. Secretary of State for the Home Department, [2003] UKHL 15, [2003] 3 All. E.R. 304, the Joint Position adopted by the Council of the European Union on the harmonised application of the term “refugee” is that refugee protection may be granted on the grounds of conscience in cases of desertion where the performance of the individual’s military duties would lead the person to participate in activities falling under the exclusion clauses in Article 1F of the Refugee Convention. (See Sepet, at ¶ 14.)

[110] I acknowledge that the views of the Council of the European Union are not binding on me, but they are nevertheless indicative of the state of international opinion on this issue.

[111] Interpreting the provisions of paragraph 171 in this manner also accords with the preponderance of the Canadian jurisprudence on this issue. Perhaps the leading Canadian authority addressing this question is the decision of the Federal Court of Appeal in Zolfagharkhani, previously cited.

[112] Zolfagharkhani involved a claim for refugee protection by an Iranian Kurd who deserted the Iranian army because of the Iranian government’s intention to use chemical weapons in the internal war being waged against the Kurds. The use of chemical weapons had unquestionably been condemned by the international community as evidenced by international conventions such as the United Nations Convention on the Prohibition of the Development, Protection and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, G.A. Res. 65, U.N. GAOR, 48th Sess., Supp. No. 49, at 68, U.N. Doc. A/48/40 (1993), 1015 U.N.T.S. 163 entered into force March 25, 1975.

[113] Even though the applicant worked as a paramedic in the Iranian army, and would have thus not been directly responsible for the discharge of the chemical weapons, the Federal Court of Appeal observed that he could nevertheless be called upon to assist fellow soldiers unwittingly caught in the chemical clouds. As a result, Mr. Zolfagharkhani’s work as a paramedic would have been of material assistance in advancing the goals of the Iranian forces, by helping the violators of international humanitarian law deal with the side effects of the unlawful weapons.

[114] The Federal Court of Appeal then observed that this level of participation could arguably have led to the exclusion of Mr. Zolfagharkhani from refugee protection for having committed an international crime. As a consequence, the Court found he came within the provisions of paragraph 171 of the Handbook.

[115] The issue was revisited by the Federal Court of Appeal the following year in Diab v.Canada(Minister of Employment and Immigration), [1994] F.C.J. No. 1277. In Diab, the Court again allowed the appeal of a refugee claimant who refused to be involved in military activities which amounted to crimes against humanity.

[116] In Radosevic v.Canada(Minister of Citizenship and Immigration), [1995] F.C.J. No. 74, this Court dismissed an application for judicial review on the basis that, on the evidence, it was unlikely that the claimant would personally have been called upon to commit atrocities.

[117] Thus these cases clearly establish that direct participation or complicity in military actions that are in violation of international humanitarian law will bring a refugee claimant within the exception contemplated by paragraph 171 of the Handbook. What is less clear is whether the mere participation of a foot soldier in an illegal war of aggression will also allow a claimant to derive the benefit of the provision.

…

[153] When one is considering the case of a mere foot soldier such as Mr. Hughey, the focus of the inquiry should be on the law of jus in bello, that is, the international humanitarian law that governs the conduct of hostilities during an armed conflict. In this context, the task for the Board will be to consider the nature of the tasks that the individual has been, is, or would likely be called upon to perform “on the ground”.

…

[163] In this case, the Board did canvas the evidence before it in some detail. While recognizing that violations of international humanitarian law by American soldiers had occurred in Iraq and elsewhere, the Board also noted that the evidence revealed that civilians were not being deliberately targeted by the American military, and that incidents of human rights violations by American military personnel were investigated, and the guilty parties punished.

…

[175] Based upon the foregoing analysis, I am satisfied that, as a mere foot soldier, Mr. Hughey could not be held to account for any breach of international law committed by the United States in going into Iraq. As a result, in the circumstances of this case, the “type of military action” that is relevant to Mr. Hughey’s claim, as that phrase is used in paragraph 171 of the Handbook, is the “on the ground” activities with which he would have been associated in Iraq.

[176] I have also found that the Board did not err in finding that the breaches of international humanitarian law that have been committed by American soldiers in Iraq do not rise to the level of being either systematic or condoned by the State. In addition, I have found that the Board did not err in finding that Mr. Hughey had failed to establish that he would himself have been called upon to commit, or be associated with, breaches of international humanitarian law, had he gone to Iraq.

In 2008, in the Carrasco Varela case, Canada’s Federal Court reviewed a decision by the Immigration and Refugee Board that had found the applicant inadmissible to Canada on grounds of war crimes or crimes against humanity. The Court stated:

[1] The Immigration and Refugee Board found there were reasonable grounds to believe that Mr. CARRASCO Varela, a Nicaraguan citizen and a member of the Sandinista Front of National Liberation, was an active and willing participant in combat against the Contras, armed guerrillas opposed to the government. His activities included the committing of atrocities against individuals under his guard, the killing of peasants in the mountains and the execution of four prisoners responsible for the kidnapping of a Soviet military attaché, all part of a widespread and systematic attack against any civilian population operating contrary to Sandinista rule. Mr. Carrasco was determined to be a person described in section 35(1) (a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (IRPA), and as such inadmissible to Canada. He was ordered deported.

[2] This is a judicial review of that decision, which held he violated human or international rights for having committed an act outside Canada that constituted an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24. …

…

CRIMES AGAINST HUMANITY

[6] It must be borne in mind that crimes against humanity are considered in two different Canadian contexts. Persons are not normally charged in Canada with respect to alleged crimes committed in other jurisdictions. However, war crimes and crimes against humanity are considered so heinous that those alleged to have committed them may be charged in Canada with an indictable offence and, if found guilty, are liable to life imprisonment. Mr. Carrasco has not been charged with a crime against humanity, or any crime, here or elsewhere.

[7] The second context arises in refugee and immigration matters. It may be determined that the United Nations Convention Relating to the Status of Refugees is not applicable because section 1F thereof specifically excludes its application to persons who have committed crimes against peace, war crimes or crimes against humanity, or that a putative refugee or immigrant is not admissible for having committed an act outside Canada that constitutes either a war crime or a crime against humanity. The burden of proof is neither on the criminal standard of beyond a reasonable doubt nor on the civil standard of the balance of probabilities. Section 33 of IRPA only requires that there be “… reasonable grounds to believe …”

…

i) EL CHIPOTE PRISON

[12] Mr. Carrasco served as a prison guard from mid-1984, except for a brief sojourn at San Jose de los Ramates, until he left Nicaragua in 1989. El Chipote was a prison in the capital of Managua where political prisoners were held, although thereafter they might be transferred elsewhere.

[13] According to Mr. Carrasco’s own testimony, prisoners were held in what can only be considered brutal and inhumane conditions. …

[14] A case very much on point, and a case frequently cited, is the decision of the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306. In speaking for the Court, Mr. Justice MacGuigan held that simple membership in an organization which, from time to time, commits international offences is not normally sufficient to tar a mere guard with same, unless the organization is principally directed to a limited brutal purpose such as secret police activity. The Sandinistas formed the government and so cannot be considered as being limited to brutal purposes (Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A) and Murillo v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 287 per Lemieux, J. at para.42).

[15] Mere presence at the scene of an offence is not enough to qualify as personal and knowing participation, and as Mr. Justice MacGuigan added, one must be careful not to automatically condemn everyone engaged in conflict under conditions of war as the law does not demand immediate benevolent intervention at a person’s own risk. “Usually, law does not function at the level of heroism.” However, he went on to say: “With respect to the appellant’s serving as a guard, I find it impossible to say that no properly instructed tribunal could fail to draw a conclusion as to personal participation”.

[16] He added that Mr. Ramirez:

[37] […] was an active part of the military forces committing such atrocities, he was fully aware of what was happening, and he could not succeed in disengaging himself merely be ensuring that he was never the one to inflict the pain or pull the trigger.

[17] Mr. Ramirez only had 20 months of service. Mr. Carrasco had six years; six years which afforded him ample opportunity to withdraw his services and to leave Nicaragua. He did not. The finding that he participated in these atrocities should not be disturbed.

[18] Ramirez has served as a template in these matters. …

…

iii) THE MURDER OF THE KIDNAPPERS

[23] Notwithstanding the many run-ins Mr. Carrasco said he had with the authorities, and notwithstanding his prior desertion, he was assigned to be part of a death squad to deal with four just captured kidnappers of a Soviet military attaché. They were led out into a field handcuffed and blindfolded. There, they were murdered in cold blood. Mr. Carrasco said that he did not fire and protested. …

[24] Mr. Carrasco did not fire, and again was punished. He remained on the job and only left Nicaragua, however, more than a year later.

[25] The remarks of Mr. Justice MacGuigan in Ramirez are even more telling when it comes to cold blooded murder.

CRIMES AGAINST HUMANITY AND MR. CARRASCO

[26] I have no doubt that the Board was correct in holding that Mr. Carrasco had committed crimes against humanity not only with respect to the murder of the kidnappers, but also with respect to his participation in the abuse of other prisoners at El Chipote Prison …

…

[29] … As Mr. Justice MacGuigan said in Ramirez, it does not really matter whether the crime is a war crime or a crime against humanity. It was a crime committed during the course of what was either a civil war or civil insurrection. He simply employed the term “international crime”. In Sivakumar, above, Mr. Justice Linden referred to article 6 of the Charter of the International Military Tribunal. Historically, a crime against humanity was committed against one’s own nationals, which helped distinguish it from a war crime. In
Gonzalez, above, Mr. Justice Mahoney made mention of the United Nations Handbook on Procedure and Criteria for Determining Refugee Status, 1979, which in turn referred to the London Agreement of 1945. A war crime included murder, and ill-treatment of prisoners of war. Crimes against humanity included murder, or other inhumane acts committed against any civilian population. Article 8 provided that superior orders would not free a person from responsibility, but could be considered in mitigation of punishment.

[30] Regardless how the matter is considered, Mr. Carrasco was rightly ordered deported. The order states: “The Immigration Division determines that you are a person described in 35(1) (a) of the Act.” Both crimes against humanity and war crimes are covered.

[31] By the same token, the prisoners in El Chipote Prison were either Contras or ordinary political dissidents. It matters not whether Mr. Carrasco’s involvement could be characterized as illtreatment of prisoners of war or inhumane acts committed against a civilian population. As Madam Justice Tremblay-Lamer noted in Harb, above, even if the prisoners had been soldiers, they were not involved in hostilities at the time of their ill-treatment in prison.

In 2011, in the Ishaku case, Canada’s Federal Court dismissed an appeal against the applicant’s exclusion from refugee protection on grounds of complicity in crimes against humanity in the Democratic Republic of the Congo. The Court stated:

15. Is the exclusion of the applicant under paragraph 1F(a) of the [1951 Refugee] Convention reasonable, having regard to the evidence and the applicable law?

…

16. In the opinion of the Court, the decision is entirely justified in its context …

…

43. … [I]t was not unreasonable for the RPD [Refugee Protection Division] to conclude that the MLC [Movement for the Liberation of the Congo] committed crimes against humanity during the relevant period.

…

57. Accomplices as well as principal actors may be found to have committed crimes within the meaning of international criminal law: international crimes. The concept of complicity is recognized in the case law, defined as personal and knowing participation, and complicity by association, whereby individuals may be rendered responsible for the acts of others because of their close and voluntary association with the principal actors in an organization that commits international crimes. Complicity rests on the existence of a shared common purpose and the knowledge that the individual in question has of the commission of the crimes (Zazai, above, at para. 27, aff’d 2005 FCA 303; Ryivuze v. Canada (Minister of Citizenship and Immigration), 2007 FC 134, 325 F.T.R. 30, at para. 28).

58. Mere membership in an organization which from time to time commits international offences is not normally sufficient to bring one into the category of an accomplice. At the same time, where the organization’s primary objective is achieved by means of crimes against humanity, or it is directed to a limited, brutal purpose, membership will generally be sufficient to establish complicity (Zazai, FC, above, at para. 28; Thomas v. Canada (Minister of Citizenship and Immigration), 2007 FC 838, 317 F.T.R. 6, at para. 23).

59. A person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and who neither takes steps to prevent them from occurring (if he or she has the power to do so) nor disengages himself or herself from the group at the earliest opportunity (consistent with safety for himself or herself) but who lends his or her active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. That statement is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation (Zazai, CF, above at para. 28; Ndabambarire, above, at para. 38).

60. Association with an organization responsible for international crimes may imply complicity if the person concerned personally or knowingly participated in the crimes, or knowingly tolerated them (Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 FC 433, 44 A.C.W.S. (3d) 563 (CA)).

…

62. A person’s rank within an organization, among other things, speaks to the likelihood of that person’s knowledge and involvement in the organization’s bad acts. However, one need not be in a leading position in order to be found complicit. Thus, the person’s position in the organization may demonstrate that person’s personal and knowing participation, and ultimately the person’s complicity in the organization’s commission of crimes. The higher the person concerned is in the ranks of the organization, the more likely it is that he or she was aware of the crimes committed and shared the organization’s purpose in committing them. Accordingly, a person who remains in a high position in the organization, knowing that it has been responsible for crimes against humanity, may be considered to be complicit (Escorcia v. Canada (Minister of Citizenship and Immigration), 2007 FC 644, 158 A.C.W.S. (3d) 796, at paras. 15–16; Thomas, above, at paras. 26–48; Ryivuze, above, at paras. 44–45, 58; Collins v . Canada (Minister of Citizenship and Immigration), 2005 FC 732, 276 F.T.R. 60, at para. 25).

…

64. The case law indicates that an organization whose very existence “is premised on achieving political or social ends by any means deemed necessary” creates a presumption that mere membership in the organization implies complicity, without the need to connect the applicant’s complicity to a particular crime committed by the organization (Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 FC 298, 42 A.C.W.S. (3d) 1048 (CA), at para. 45).

70. The case law has laid down the factors to be taken into consideration in determining whether there genuinely are serious reasons for considering that a claimant may be considered to be complicit in the commission of crimes or acts referred to in section 1F of the [1951 Refugee] Convention. Those factors are: the method of recruitment, the applicant’s position and rank in the organization, the nature of the organization, the applicant’s knowledge of the crimes or acts committed, the length of his or her participation in the organization’s activities, and the opportunity to leave (Ndabambarire, above, at paras. 38–44; Thomas, above, at para. 20; Muchai v. Canada (Minister of Citizenship andImmigration), 2007 FC 944, 160 A.C.W.S. (3d) 682, at para. 7).

…

Nature of the organization

73. … [A]ccording to the abundant evidence cited by the RPD, in the years when the applicant was a member of the MLC it continuously and regularly engaged in crimes against humanity to achieve its political objective.

Method of recruitment

74. It is clear that the applicant joined the MLC voluntarily: in fact, he testified that he wanted to better position himself on the political ladder and become a close government advisor when the MLC toppled President Kabila and assumed power …

Position within the organization

75. The applicant held a decision-making position, or at the very least an advisory position, as a member of the movement’s legal college. He was not a subordinate who did not know the direction his organization was taking. In view of his activism and the positions he took against the government in place, he was counsel to Jean-Pierre Bemba Gombo, who was, as noted earlier, the leader of the MLC, in the Supreme Court of Justice of the DRC (TR at p. 181).

Knowledge of atrocities

…

77. … [T]he documentary evidence indicates that the violations committed by the ALC [Liberation Army of the Congo] were well-known and highly publicized.

78. After several questions and confrontations, the claimant finally testified that between 2000 and 2004, he was aware of the human rights violations committed by the MLC … Concerning the massacres in North-Kivu, the applicant testified that he had been aware of them, but not in detail … He said that he heard through media reports that there was a war and, according to him, stray bullets that might hit a civilian are normal, that in a state of war, civilians sometimes died, but he was not aware that civilians were the target of attacks … When asked whether he had heard of the systematic rape of women, girls and boys as a weapon of warfare, and the murder of civilians, he claimed that he had not … and then admitted that he was in fact aware of that …

79. When he was asked whether the government talked about the abuses committed by the MLC at that time, he testified that it was difficult to treat these reports as the truth and he put them down to political brainwashing … However, he did not try to verify whether the reports were true …

80. When asked about the fires and massacres of entire villages in April 2001, which were widely reported in the media, the claimant testified that he had heard about the clash between the MLC and the mayi-mayi; but knew nothing about that exact incident. However, he knew that there had been massacres generally by the MLC … Later in his testimony the applicant tried to minimize the situation, essentially saying that it depended on the meaning given to the word massacre …

81. About operation “Effacez letableau” [wipe the slate], which was widely reported in the documentary evidence, the applicant knew only that … “the MLC killed a group of pygmies and attacked the pygmies” … However, he added that at first he had believed it, but then he doubted the information because it was beyond human understanding that there was cannibalism in the Congo …

…

83. If, as in this case, an individual lives and works in a country where thousands of people are victims of crimes against humanity and where one hears about it, it is totally unbelievable that one would not have knowledge of what is taking place (Shakarabi v. Canada (Minister of Citizenship and Immigration) (1998), 145 F.T.R. 297, 79 A.C.W.S. (3d) 133 at para. 25).

84. Concerning the mass recruitment of child soldiers, the applicant testified that he was aware of it, but according to him, it was done in 1998–1999 by soldiers of the former Mobutu regime, to supplement its forces … When confronted with the fact that this practice continued in 2002, the applicant stated that he was not aware of it …

85. At one point during the hearing, the applicant stopped his denials and admitted that the MLC was an armed movement before 2004 and that he knew it … and that he knew that even the political branch supported the armed conflict, in accordance with the movement’s statutes …

Length of time in the organization

86. … Having regard to the evidence described above, it was not unreasonable for the RPD to conclude that he was an active member of the MLC starting in 2000 and until the end of 2003, during a period when the movement was continuously and regularly committing the crimes against humanity referred to earlier.

Opportunity to leave the organization

87. The applicant voluntarily remained with an organization that he knew was committing or had committed serious human rights violations.

…

89. Having regard to the foregoing, it was not unreasonable for the RPD to conclude that the applicant had not rebutted the presumption that he was complicit in crimes against humanity committed by the MLC between 2000 and 2004.

…

92. It should also be noted that in exclusion cases the courts have never required, in order for a claimant to be found to be complicit by association, that he or she be connected with specific crimes or acts as the person who actually committed them, or that the crimes committed by an organization be necessarily and directly attributable to specific omissions or acts by the claimant …

93. … [I]t was not unreasonable for the RPD to have serious reasons for considering that the applicant has committed crimes against humanity.

94. It was therefore not unreasonable for the RPD to exclude the applicant from the application of the [1951 Refugee] Convention under paragraph 1F(a).

In 2011, in the XXXX case, the Immigration Division of Canada’s Immigration and Refugee Board declared Mr. XXXX inadmissible to Canada on grounds of,
inter alia, complicity in crimes against humanity. The Division stated:

153. Section 35 of the IRPA [Immigration and Refugee Protection Act] contains three separate grounds under the IRPA [to declare a foreign national inadmissible to Canada] for violating human or international rights. In the case of Mr. XXXX the allegation of inadmissibility for violating human or international rights is under paragraph 35(1)(a) for the commission [of] an act outside Canada constituting an offence in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act [criminalizing war crimes, genocide and crimes against humanity]. The allegation of inadmissibility is under paragraph 35(1)(a) of the IRPA is separate and apart from an allegation of inadmissibility under 35(1)(b) of the IRPA. The elements of [paragraph] 35(1)(a) cannot be mingled with the elements of paragraph 35(1)(b). Paragraph 35(1)(a) refers to the commission by the subject of the report of an act constituting an offence under the Crimes Against Humanity and War Crimes Act. There is no element in [paragraph] 35(1)(a) requiring proof that [the] person alleged to have committed the act was a senior official of a government or a senior official of the government’s pre-sovereign counterpart.

…

155. The two decision[s] of the FC [Federal Court] and FCA [Federal Court of Appeal] central to the consideration of evidence on the inadmissibility under [paragraph] 35(1)(a) of the IRPA are the decisions in Ramirez v. M.C.I., and Ali v. M[.]C[.]I.

156. In the decision in Ramirez the FCA at page 317 stated the following:

... where an organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts.

157. … One of the factors to be determined flows from the decision in Ramirez: are there reasonable grounds to believe that the EPLF [Eritrean People’s Liberation Front] is an organization principally directed to a limited and brutal purpose; or, that the EPLF was an organization engaged in sporadic violations of human or international rights.

158. The credible evidence on the history of the former Ethiopia shows that between the start of the 1960s and the fall of the Lt.-Col. Mengistu’s regime in February 1992 various rebel groups and national liberations fronts engaged in wars of liberation with the Ethiopian government based in Addis Ababa. That war lasted thirty years and cost the lives of an untold number of victims. One of the leading rebel groups/liberation fronts was the EPLF …

159. … The EPLF developed into a large and complex organization involved in [a] varied number of functions not only to gain military victory but to also administer the area and population the EPLF gained control over … [T]the EPLF was a complex and varied organization with the aim and objective of winning the war of liberation and instituting a transformation of Eritrean society. Given complex organization and varied functions, the EPLF does not easily fit into a description of an organization principally directed to a limited, brutal purpose.

160. In the decision in Ali at paragraph 10 the FC held that the FC in previous decisions has enumerated the six factors to be considered in determining whether an individual is complicit in crimes against humanity.

10. …

2. Whether Mr. Ali is complicit in the crimes of the MQM [Mohajir Qaumi Movement, a Pakistani political party] is essentially a question of fact requiring an evaluation of his particular circumstances. The Federal Court has enumerated six factors which should be considered in determining whether an individual is complicit in crimes against humanity:

(1) the nature of the organization;

(2) the method of recruitment;

(3) position/rank in the organization;

(4) knowledge of the organization’s atrocities;

(5) the length of time in the organization; and,

(6) the opportunity to leave the organization.

Factors of Complicity

Nature of organization

161. The EPLF was a rebel group or liberation front that evolved from the various ideological and ethnic factions that made up the various rebel fronts operating in Eritr[e]a … The EPLF was a secessionist movement to overthrow the Ethiopian government in Eritr[e]a. In early 1960 a Supreme Council of the ELF [Eritrean Liberation Front] was set up to provide fighters for an armed resistance and external contacts to provide funds, arms and military training. The Eritrean People’s Liberation Forces was formed in 1972 after a split from the Eritrean Liberation Front-Eritrean People’s Forces (ELF-PLF). At the First National Congress in January 1977 the Eritrean People’s Liberation Forces was renamed as the Eritrean People’s Liberation Front (EPLF).

162. From the beginning the liberation fronts were set up for armed resistance and guerrilla warfare with the aim of gaining self-determination for Eritrea. The EPLF at no time rejected violence as a means of achieving their political objective of self-determination … [T]he EPLF [then] developed into a large and complex organization carrying out multiple functions …

163. … The nature of the organization and programme of political education of members of the EPLF establishes that the ideological and organizational framework was set up to inculcate and maintain a strong sense of a shared, common purpose throughout the EPLF.

Method of recruitment

164. … Mr. XXXX testified that he joined the EPLF voluntarily in order to participate in the war of liberation for Eritrean self-determination.

Position/Rank in the organization

165. … Mr. XXXX’s testimony was that he was involved in recruiting new members; urging persons to participate in military training as fighters and to explain the aims and objectives of the EPLF … [R]ecruitment for new members and fighters was essential [for] maintaining the number of fighters …

166. Although Counsel argues that Mr. XXXX did not participate in military action and held … a civilian administrative position, Mr. XXXX’s testimony indicates that his duties involved activities that were directly related to ensuring the functioning of the military forces of the EPLF to pursue military actions and attacks. Some of those attacks resulted in the perpetration of crimes against humanity and war crimes such as the attacks on trucks carrying famine relief. According to Mr. XXXX’s testimony his role in recruiting members and fighters was to urge and persuade new recruits to join the war of liberation to protect civilians. However, the documentary evidence indicates that the role of the EPLF was not … benign …

167. The evidence indicates that Mr. XXXX accepted positions in the Provisional Government and then after the referendum in the Government of Eritrea. This evidence, of the continuing membership in the organization that formerly was the EPLF, confirms that Mr. XXXX continued to have a shared … common purpose from 19XX when he became permanent EPLF member throughout the war of liberation and after the UNOVER [United Nations Observer Mission to Verify the Referendum in Eritrea] referendum …

Knowledge of organization’s atrocities

168. In the written submissions, Counsel argues that Mr. XXXX was far removed from the field and was never in any position of power that he would have been privy to information about what was going at the front …

…

170. Given the history of the long and brutal liberation struggle … and Mr. XXXX’s own involvement with the EPLF since 19XX, it is not plausible that Mr. XXXX was completely unaware of the EPLF activities in that liberation struggle. When Mr. XXXX joined the EPLF it already was an identifiable organization known to be involved in a war of liberation against the Lt.-Col. Mengistu’s regime. It is not plausible that in receiving the political education which stressed Eritrean history, politics that he was not aware of the use of violence in pursuing self-determination. In his own testimony Mr. XXXX admits that he was involved in recruitment of new members and fighters, it is not plausible that he would be unaware of the needs of the EPLF for new conscripts. Given the scale of personal tragedies of the Eritrean refugees; and the brutal[ity] of death from war and famine, Mr. XXXX’s statement that he was not aware of any atrocities or wrongdoing by the EPLF is not plausible.

Length of time in the organization

171. The evidence concerning Mr. XXXX’s participation in the EPLF is not in dispute. Mr. XXXX first joined the EPLF in 19XX at about 16 years of age. Mr. XXXX became a full time member of the EPLF in 19XX. According to Mr. XXXX’s testimony from 19XX he devoted his full time to work for the EPLF since he did not have to seek private employment. Mr. XXXX continued to carry out his duties in positions with the EPLF from 19XX until the EPLF formed the Government of [Eritrea] after the referendum in 19XX. After the EPLF renamed itself the PFDJ he accepted a position as XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Province. In 20XX he accepted a position with the XXXXXXXXXXXXXXXX. Mr. XXXX has been a long-standing member of the EPLF throughout the time that the EPLF pursued the war of liberation for Eritrean self-determination.

Opportunity to leave organization

172. … There is no indication that Mr. XXXX took steps to leave the EPLF/PFDJ [People’s Front for Democracy and Justice] when he found out the actions that the government took in jailing and detaining opponents or critics of the one-party rule that is the basis of the government in Eritr[e]a. There is no indication that from the time Mr. XXXX claims he first became aware of the government[’]s actions in 20XX … Mr. XXXX [tried] to leave; instead Mr. XXXX took on further duties on behalf of the Government of Eritrea. His explanation for failing to do so is not convincing given the nature of the position with the government that he accepted voluntarily.

173. Having considered the six factors outlined in the decisions by the FC and FCA, I find that the credible evidence establishes Mr. XXXX’s complicity in the commission or omission of an act that constitutes an offence under the Crimes Against Humanity and War Crimes Act.

…

199. I find that the MPSEP [Minister of Public Safety and Emergency Preparedness] has discharged the burden of establishing the inadmissibility on the grounds of violating human or international rights under paragraphs 35(1)(a) of the IRPA. Under paragraph 229(1) (b) of the IRP[A], I am required to make a Deportation Order.

In 2013, in the Nikuze case, Canada’s Federal Court allowed a judicial review of the decision to exclude the claimant, a Rwandan citizen, from refugee protection because of serious reasons to consider that she had taken part in the 1994 genocide in Rwanda. The Court stated:

37. A refugee claimant can be excluded from protection from Canada if it is established that he or she was complicit in the commission of one of the crimes enumerated in paragraph 1F(a) of the [1951] Refugee Convention [war crimes, crimes against humanity and crimes against peace]. The test for complicity is that of “personal and knowing participation”, which is presumed when the claimant was a member of an organization “principally directed to a limited, brutal purpose” (Ramirez, above, at paras 15–16). Where the organization is not directed to a limited, brutal purpose, the Federal Court of Appeal and this Court have established six factors to assess the degree of a refugee claimant’s complicity in a crime against humanity, namely, the nature of the organization, the method of recruitment, the position or rank within the organization, knowledge of the organization’s atrocities, the length of time in the organization and the opportunity to leave the organization (Ardila v Canada (Minister of Citizenship and Immigration), 2005 CF 1518 at para 11 Ardila).

38. In the case under review, I am satisfied, on reading the lengthy reasons for the impugned decision, that the panel failed to perform the necessary analysis to establish that the applicant, through her actions or by acquiescence, was complicit in the 1994 genocide and/or the atrocities committed on the Butare campus [of the National University of Rwanda] while she was living there with all the other Faculty of Law students.

39. The panel noted that the applicant had belonged to the DRM [Democratic Republican Movement] political party from 1991 to 1994, without, however, questioning her role and level of involvement in that organization – minimal according to her testimony – or making any finding of fact.

40. Instead, the panel reached a generalized conclusion that “students, professors and university officials at the NUR [National University of Rwanda] campus in Butare personally participated or were complicit in the Rwandan genocide of April to June 1994”. The panel is therefore not referring to all the students, professors and university officials and failed to explain why the applicant would have been part of these students who were complicit in war crimes. In other words, the panel did not establish a link between the fact that the applicant was part of the students displaced by the war and the documentary evidence describing an … “active mobilization of the students of the Faculty of Law in Kigali … controlled from the prefecture by atypical students”. Any inferences drawn from the circumstances of the present case are pure speculation.

41. Contrary to the situation of Mr. Teganya (a moderate Hutu) in Teganya v Canada (Minister of Citizenship and Immigration), 2006 FC 590 at paras 15–16 Teganya, the applicant never admitted that she had been aware of the atrocities committed on the campus where she lived, and the evidence does not establish that she shared a common purpose with the perpetrators of these crimes.

42. … [I]t is my view that a generalized conclusion that the students and all academic and administrative staff of the Faculty of Law who were displaced to the NUR campus at Butare and who survived this displacement personally participated or were complicit in the 1994 genocide is simply unreasonable.

In 2013, in the Peters case, Canada’s Immigration and Refugee Protection Board rejected an immigration request on grounds of allegations of complicity in crimes against humanity in Libya. The Board stated:

On [30 May 2012], you were … reported pursuant to paragraph 35(1)(a) [of the Immigration and Refugee Protection Act, the IRPA] as a permanent resident who was inadmissible to Canada for alleged violation of human, or international, rights for committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act. …

…

… [W]hen the conflict began in February 2011 in Libya you were called upon [by Al-Saadi Gaddafi] to provide security services for him in Libya. …

…

With respect to the allegation under 35(1)(a). For the purposes of this hearing section 6 and 7 of the Crimes Against Humanity and War Crimes Act are the relevant sections as they deal with offences committed outside of Canada and I will make reference to the relevant sections in respect of this case.

Subsection 6(1) indicates that every person who either before or after coming into force of this section commits outside of Canada, a) genocide, b) a crime against humanity, or c) war crime, is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.

Subsection 1.1 indicates that every person who conspires, or attempts to commit is an accessory after the facts in relation to, or counsels, in relation to an offence referred to in subsection 1 is guilty of an indictable offence.

Subsection 3 indicates definitions and the relevant definition is that relating to crimes against humanity …

…

Now, I would also note that the Criminal Code of Canada has incorporated this definition into the legislation and it is an established principle in international domestic law that people who have personally [committed] war crimes, crimes against humanity, crimes against peace, and other international crimes, would generally be held accountable for those crimes.

As well, people who have been involved in the commission of such acts in a peripheral way and who are not directly involved may also be held responsible for the commission of those crimes.

In complicity resulting from membership in an organization, it is important to know … the nature and type of the organization to which the person belongs[;] there are three types of organizations, brutal, non-brutal, and/or hybrid.

Briefly, a brutal organization is one whose main purpose, or activity, is to be involved in human rights abuses. Non-brutal organizations are those originally established for legitimate purposes and functions, but which would quite frequently get involved in human rights abuses, such as regular armed forces, militias, political parties.

Hybrid organizations are those organizations which have units some of which are involved in crimes against humanity, others not.

To attach responsibility through peripheral participation in the crimes of non-brutal organizations, that is complicity arising from the actions of a participant, a person could either aid… or [abet] the perpetration of those crimes or may be complicit in the perpetration of those crimes through a shared common purpose.

Aiding and [abett]ing arises when a person substantially facilitates the mission of the organization by assisting in, or engaging in, activity that contributes directly or indirectly, to the purposes of the organization in question. A person's complicity may also arise from the existence of a shared common purpose and knowledge that all parties in question may have of the purpose of the organization.

The commonly considered factors for shared common purpose as established by the Federal Court are nature of the organization, the method of recruitment, position or rank in the organization, length of time in the organization, opportunity to leave and knowledge of the organization’s atrocities. It is also possible to commit crimes against humanity as an accomplice without personally committing the acts that are designated international crimes.

Once it has been established that a person has associated with a group that has committed excludable crimes and the other conditions … are met such as knowledge, participation, or complicity, then the [in]admissibility under [section] 35 of the IRPA may apply even where the specific acts committed by the individual cannot be characterized as international crimes.

Whether a person has been involved in one atrocity, or several, and at one time, or over a period of time, is irrelevant to the determination that there are serious reasons for considering that he or she has committed an international crime. What is relevant to the application of section 35 of the Act is that the person belonged within the appropriate timeframe to an organization that was involved repeatedly in the commission of international crimes. As well, where the notoriety and singular purpose of a group is established, there is no need to identify specific acts [in] which the individual has been involved.

As discussed in the Ramirez case, the knowledge of an organization’s purpose[,] mandate, agenda, or activities, which will support a finding of complicity may be directed or imputed and may be contingent on the nature of the organization in question. In some cases, persons will be deemed to have been wilfully blind to the atrocities of the organization, in which case, knowledge is imputed.

If an organization has a limited brutal … purpose[,] personal and knowing participation in a shared common purpose to commit excludable crimes may be assumed by membership alone. Knowledge of the brutal and limited purpose of the organization can be imputed from the activities one is involved in and is presumed if one belongs to this type of organization[;] this presumption can be rebutted or evidence can be adduce[d] why this inference should not be applied.

If the organization is not so characterized, then mere membership is not enough to establish a shared common purpose. The net, however, is cast wide for holding people responsible for international crimes and leaders, organizers, accomplices, and instigators may be drawn in.

The principle of complicity can be summarized by stating that active participation in [the] organization is not required, but that a person is complicit if this person contributes directly, or indirectly, remotely, or immediately, while being aware of the activities of the organization … or makes these activities possible.

…

I’m satisfied that your role as a personal security guard of Al-Saadi Gaddafi while he was acting as his father’s agent, participating in meetings, going to barracks to speak to the soldiers and representing the government before the people of Libya rends you as a member of the government apparatus given your closeness to the regime and the fact that your role facilitated the work of the government. Work that, in large part, involved the campaign against the civilian population of Libya.

As a result I find you culpable in the crimes that were committed by the government and therefore captured within the parameters of paragraph 35(1)(a). Even if I was to find that the Libyan government and its security apparatus does not constitute a limited brutal purpose organization, I am satisfied that they have engaged in crimes against humanity[,] and while the documents detail crimes for which the Libyan government was responsible dating back to the 1980’s, the period that I’m focussing is as I indicated February to August 2011.

…

When I look at the criteria of method of recruitment and the opportunity for you to leave, the information before me indicates that you were engaged in a business relationship with Al-Saadi Gaddafi, that you were paid to be his security guard and that you at present time are awaiting payment for the last job that you did for him.

The information, including your testimony, indicates that you engaged this activity of your own free will. There’s no allegation from you of being under duress in any way to remain. You testified that you came and went as you pleased despite Al-Saadi wanting you to remain and work for him full time.

…

[A]s it relates to the issue of knowledge, I’m not satisfied that you were complet[ely] unaware of the atrocities that were being committed …

…

I find it incredible that you would have no knowledge given your proximity to the regime, your position of trust and the things that you acknowledge witnessing while carrying out your duties … Your role and position were such that you ought to have known, and any lack of knowledge on your part, amounts to wilful blindness which is not an acceptable defence against these allegations.

I am satisfied that all factors point to a finding that you are complicit in the crimes against humanity that were perpetrated by the Gaddafi regime by virtue of your position as a personal bodyguard of Al-Saadi Gaddafi …

I am … satisfied … that there are reasonable grounds to believe that you are described pursuant to both paragraphs 35(1)(a) and 37(1)(b) of the Immigration and Refugee Protection Act and I am therefore issuing deportation orders against you.

As per my explanation at the outset of the hearing on January 14th, 2013, and at the beginning of this decision today, the only avenue of recourse available to you is to seek judicial review from the Federal Court of Canada[,] and that application must be filed with the courts within 15 days of today’s date.

Canada, Immigration and Refugee Board, Peters case, Record of an Admissibility Hearing under the Immigration and Refugee Protection Act, 29 January 2013, pp. 2, 4, 8–9, 11 and 14–15.

In 2013, in the Lukavica case, Canada’s Federal Court overturned a decision of the Canadian Embassy in Vienna. The Embassy had denied Lukavica’s application for a permanent resident visa on grounds of complicity in war crimes and crimes against humanity in Bosnia in 1995. The Court stated:

2. In a decision rendered December 1, 2011, an immigration officer at the Canadian Embassy in Vienna denied the applicant’s application for a permanent resident visa, finding there to be reasonable grounds to believe that the applicant is inadmissible under paragraph 35(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [providing for the inadmissibility in Canada of a person who has committed outside Canada genocide, crimes against humanity or war crimes]. More specifically, the officer found that there were reasonable grounds to believe that the applicant was complicit in atrocities committed by the Third Corps of the Bosnian Army in the Ozren Mountains during September of 1995.

…

15. The applicant was a young, conscripted soldier who was in training in an engineering unit at a site separate from that of the atrocities [40 kilometers from it] throughout the time period in question [September 1995] … The applicant had no authority in the Army and thus it would not be surprising for him to have no knowledge about operations undertaken by other units.

…

19. Counsel for the applicant asked that I issue a directed verdict in this case [deciding on the admissibility of the applicant in Canada rather than only on the fairness of the procedure], given that the applicant is being kept apart from his wife, who is here in Canada. I do not find it appropriate to do so, because new evidence will likely be before the next decision-maker. However I would note that, on the present facts, and in light of the current state of the law, there is little or nothing to support a finding that the applicant was complicit in war crimes. In that respect, the facts of this case are comparable to those in Ardila v Canada (Minister of Citizenship and Immigration), 2005 FC 1518 in which Justice Kelen overturned a finding of complicity of a young conscript into the Colombian Army who had spent the majority of his time in the Army in training and whose unit had not been implicated in war crimes. The present case, and Ardila, are to be contrasted with situations in which membership and participation in the affairs of a limited brutal purpose organization gives rise to a complicity finding (see e.g. Seyoboka v Canada (Minister of Citizenship and Immigration), 2012 FC 1143), or where one’s seniority in an organization may similarly justify a finding of complicity (
Ezokola v Canada (Minister of Citizenship and Immigration), 2011 FCA 224, [2011] 3 FCR 417, leave to appeal granted April 26, 2012 (2012 CarswellNat 1173) (SCC), judgment pending; Nsika v Canada (Minister of Citizenship and Immigration), 2012 FC 1026). In contrast, here, it is wholly plausible that a young conscript, with no seniority, in the Army for a short period of time, would be unaware of war crimes committed elsewhere by another unit, and would have done nothing to further their commission.

In 2013, in the MJS case, Canada’s Federal Court dismissed an appeal against the applicant’s exclusion from refugee protection on grounds of complicity in war crimes and crimes against humanity. The Court stated:

2. The Refugee Protection Division [the Panel] found that Mr. MJS was excluded from refugee protection under section 98 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act], and Article 1F(a) of the United Nations Convention Relating to the Status of Refugees [1951 Refugee Convention], T.S. 1969 No. 6, Art. 1F [excluding from refugee protection persons who have committed or taken part into, inter alia, crimes against peace, crimes against humanity and war crimes].

…

16. Mr. MJS submits that the complicity test chosen by the Panel is not consistent with the test established in the case law. In short, he argues that the Panel erred when it determined that he was complicit in the crimes against humanity and the war crimes committed by a [military] faction [of the Group] to which he had never belonged, without establishing the degree of his personal and knowing participation in these atrocities.

17. I disagree.

18. The legal principles that apply when analysing complicity are well-established in the case law. These principles were summarized at paragraph 18 of the decision in Kathiripillai v Canada (Minister of Citizenship and Immigration), 2011 FC [Federal Court] 1172 Kathiripillai:

i. It is possible to “commit” a crime against humanity as an “accomplice,” or through complicity, even though one has not personally engaged in the acts amounting to the crime (Ramirez v Canada (Minister of Employment and Immigration), [1992] 2 FC 306, at 314–317 (CA); Sivakumar v Canada (Minister of Employment and Immigration), [1994] 1 FC 433, at 438 (CA); Canada (Minister of Citizenship and Immigration) v Ezokola, 2011 FCA [Federal Court of Appeal] 224, at para 50).

ii. Mere membership in an organization which is not directed to a limited and brutal purpose, but which from time to time commits international offences, is not normally a sufficient basis upon which to find that a person was complicit in such crimes (Ramirez, above, at 317; Sivakumar, above, at 440; Ezokola, above, at para 52).

iii. Similarly, mere presence at the scene of a crime, and acts or omissions amounting to passive acquiescence, are not a sufficient basis upon which to find that someone has been complicit in the commission of a crime against humanity. A person is not required to incur a risk of similar treatment by intervening to stop such a crime (Ramirez, above, at 317; Sivakumar, above, at 441; Ezokola, above, at para 53; Moreno v Canada (Minister of Employment and Immigration), [1994] 1 FC 298, at 322 (CA)).

iv. To be complicit in a crime against humanity committed by others, a person must be shown to have either had “personal and knowing participation” in the crime or to have tolerated the crimes (Ramirez, above, at 316-317; Sivakumar, above, at 438, 442; Ezokola, above, at paras 52–58).

v. Personal participation in a crime does not require physical participation or presence at the scene of the crime, and may be established by demonstrating the existence of a shared common purpose (Ezokola, above, at para 53; Moreno, above, at 323; Sivakumar, above, at 438–439).

vi. A shared common purpose can be established in various ways, including by demonstrating that a person (i) is a member of an organization that committed the crime, (ii) had knowledge of the commission of the crime, (iii) provided active support to the organization, and (iv) neither took steps to prevent the crime from occurring (if that was within the person’s power) nor left the group at the earliest opportunity, having regard to that person’s own safety (Penate v Canada (Minister of Employment and Immigration), [1994] 2 FC 79, at para 6).

vii. Presence coupled with being an associate of the primary offenders may be sufficient to constitute complicity, depending upon the particular facts in question (Ramirez, above, at 317).

viii. It is not the fact of working for an organization that makes an individual an accomplice to the acts committed by that organization, but rather the fact of encouraging or knowingly contributing to its illegal activities in any manner whatsoever, whether from within the organization or from the outside (Ezokola, above, at para 55; Bazargan v Canada (Minister of Citizenship and Immigration) (1996), 67 ACWS (3d) 132, at para. 11 (CA); Sivakumar, above, at 438).

ix. A person who aids in or encourages the commission of a crime, or a person who willingly stands guard while it is being committed, will usually be found to have been complicit in the crime (Sivakumar, above, at 438).

x. The closer one is to being a leader, as opposed to being an ordinary member, of an organization that has committed a crime against humanity, the more likely it is that an inference will be drawn that one knew of the crime and shared the organization’s purpose in committing that crime (Sivakumar, above, at 440).

xi. Likewise, the closer a person is to being involved in the decision-making process and the less he or she does to prevent the commission of a crime against humanity, the more likely criminal responsibility will attach (Moreno, above, at 324; Ezokola, above, at para 53).

19. In addition to the foregoing, the case law has identified the following other factors to be considered when assessing whether a person was complicit in the commission of a crime against humanity:

i. The nature of the organization;

ii. The method of recruitment;

iii. The length of time in the organization;

iv. Opportunity to leave the organization; and

v. Knowledge of the organization’s atrocities …

20. In the case at bar, the Panel clearly recognized, at paragraph 39 of its decision, that “[s]imple association to [the Group] was not enough, a more detailed examination of the claimant’s connection to these crimes is required”. The Panel also quoted an excerpt from Bazargan v Canada (Minister of Citizenship and Immigration), [1996] F.C.J. no 1209 (QL) Bazargan, at paragraph 11, in which the Federal Court of Appeal reiterated, among other things, that “personal and knowing participation” can be direct or indirect and that “[a]t bottom, complicity rests … on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it” (see also Harb v Canada (Minister of Citizenship and Immigration), 2003 FCA 39, at para 18 Harb).

21. The Panel then took into account the fact that “no evidence was presented to demonstrate that the claimant had any direct involvement in human rights abuses”. However, it also noted that “[i]t is not working within an organization that makes someone an accomplice to the organization’s activities, but knowingly contributing to those activities in any way or making them possible …”.

22. The Panel also reiterated that Mr. MJS acknowledged in his testimony that he knew of the human rights violations committed by [the Group]. Earlier in its decision, the Panel found that “the documentary evidence clearly demonstrates that [the Group] committed crimes against humanity as well as war crimes in the period 1998 to 2005” …

…

24. After concluding that Mr. MJS’s recruitment efforts for [the Group] in the country’s capital “performed a valuable and visible contribution to [the Group]”, and after considering the other factors listed in paragraph 19, above, the Panel found that Mr. MJS had been complicit in the crimes committed by [the Group].

25. In my opinion, the Panel’s treatment and application of the complicity test was entirely consistent with the case law principles set out in paragraphs 18 and 19, above. As explained in subparagraph 18(v), “personal and knowing participation” can be established by demonstrating the existence of a shared common purpose. In turn, as stated in subparagraph 18(vi), a shared common purpose can be established in various ways, among other things by assessing certain factors. In its analysis, the Panel discussed these factors, and it was on the basis of this analysis that it arrived at its conclusion regarding Mr. MJS’s complicity in the crimes committed by [the Group].

26. It would have been preferable for the Panel to have stated more explicitly that Mr. MJS shared [the Group’s] purpose. However, the Panel’s discussion of Mr. MJS’s recruitment efforts demonstrates that the Panel was of the opinion that Mr. MJS shared this purpose.

27. I note, moreover, that the evidence confirms that Mr. MJS was an advocate for this organization and that he even explained to individuals he attempted to recruit that the crimes committed by [the Group] could be tolerated in the context of the civil war … The Panel was therefore not obliged to enter into a more thorough discussion of the relationship between [the Group’s] political faction, to which Mr. MJS belonged, and its military faction, which committed the atrocities described above. Having said that, I note that Mr. MJS admitted that those with political power in [the Group] ultimately controlled the fighters … He also admitted that he knew about the widespread attacks [the Group] was preparing to carry out and about how it funded these activities … (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para 15, [2011] 3 S.C.R. 708 Newfoundland Nurses).

…

28. Mr. MJS submits that the Panel erred in failing … to establish a link between him and these crimes …

29. I disagree.

…

31. Mr. MJS submits that since the Panel recognized that [the Group] was not a limited brutal purpose organization, it was impossible for it to conclude that Mr. MJS had been complicit in all the crimes committed by this group.

32. In my opinion, given the particular facts of this case, it was entirely acceptable for the Panel to draw this conclusion after (i) emphasizing that Mr. MJS had testified that he knew of the crimes; (ii) determining that he was making a viable and highly useful contribution to [the Group]; and (iii) taking into account the complicity factors set out at paragraph 19, above. As mentioned above, Mr. MJS also acknowledged that he had attempted to convince other [members of his ethnic group] that the crimes committed by [the Group] could be tolerated, that he had defended the movement’s use of armed struggle and that he had taught these individuals about the movement’s objectives and the valid grounds for its existence …

…

35. … [T]he Panel found that Mr. [MJS]’s recruitment efforts for [the Group] in the country’s capital “performed a valuable and visible contribution to [the Group]”. This represents a significant link between Mr. MJS and the committed crimes …

36. In light of this analysis, it was not unreasonable for the Panel to reach the conclusion that Mr. MJS was complicit in the crimes committed by [the Group] that were identified by the Panel …

…

40. Mr. MJS submits that the Panel’s analysis was unreasonable in respect to the following complicity factors:

i. The manner in which he was recruited;

ii. His position in [the Group];

iii. His knowledge of the atrocities committed by [the Group];

iv. His opportunity to leave [the Group]; and

v. The length of time he spent with [the Group].

41. In my opinion, the Panel’s analysis of each of these five factors, as well as its overall analysis of the complicity factors, is not unreasonable.

(i) Method of recruitment

42. Mr. MJS states that nothing in the evidence indicates that he joined [the Group] voluntarily. He alleges that he became a member under duress.

43. I disagree.

44. The Panel recognized that Mr. MJS initially participated in [the Group’s] activities because he was pressured to do so by [the Agency, a government agency], which intended to destroy [the Group]. The Panel found, however, that, relatively quickly, Mr. MJS became a willing recruit while continuing to portray himself to [the Agency] as a double agent acting at their behest.

45. On this note, the Panel notes earlier in its decision that Mr. MJS himself decided to become an “effective” or true member of [the Group] in 1999 without cutting his ties with [the Agency].

48. Mr. MJS further submits that, given that he was working for [the Group] secretly, it was absurd on the part of the Panel to conclude that his recruitment efforts gave him a certain visibility within the organization.

49. I disagree.

50. In paragraph 33 of its decision, the Panel explains that the recruitment of [intellectuals of Mr. MJS’s ethnic group] was important to [the Group] since it wanted to show [this minority of the population] that [the Group] was not simply an [ethnic majority] organization … The Panel also noted that Mr. MJS was responsible for recruiting [members of his own ethnic group] in the country’s capital, which provided him with high level of visibility within the organization.

…

52. … I consider reasonable the Panel’s finding regarding the important role played by Mr. MJS in [the Group]. Contrary to Mr. MJS’s arguments, the Panel was not obliged to determine whether he held a leadership position in [the Group], or whether he was in the higher ranks of that organization in order to find him complicit in the atrocities committed by [the Group] (Ishaku v Canada (Citizenship and Immigration), 2011 FC 44, at para 62; Justino, above, at para 10).

…

(iii) Knowledge of atrocities

58. Regarding his knowledge of the atrocities, Mr. MJS submits that the Panel was obliged to establish a shared common purpose between him and those who committed the atrocities, failing which the mens rea requirement is not satisfied.

59. As stated in subparagraph 18(iv), above, when determining whether a person was complicit in a crime against humanity committed by others, the key issue is whether the person had “personal and knowing participation” in the crimes or whether he or she tolerated them (my emphasis) (Ramirez v Canada (Minister of Employment and Immigration), [1992] 2 FC 306 (CA), at pp 316–317; Sivakumar, above, at pp 438 and 442; Ezokola, above, at paras 52–58).

60. Personal participation in a crime can be established by demonstrating the existence of a shared common purpose (Ezokola, above, at para 53; Moreno v Canada (Minister of Employment and Immigration), [1994] 1 FC 298 (CA), at p 323; Sivakumar, above, at pp 438–439).

61. In turn, a shared common purpose can be established in various ways, including by demonstrating that a person (i) is a member of an organization that committed the crime, (ii) had knowledge of the commission of the crime, (iii) provided active support to the organization, and (iv) neither took steps to prevent the crime from occurring (if that was within the person’s power) nor left the group at the earliest opportunity, having regard to that person’s own safety (Penate v Canada (Minister of Employment and Immigration), [1994] 2 FC 79, at para 6).

62. As mentioned earlier, Mr. MJS testified that he became an “effective” member of [the Group] voluntarily … Mr. MJS also testified that he knew of the atrocities committed by [the Group] …

…

65. Regarding his support of [the Group], he admitted that he defended the goals of this organization and that he explained to [fellow members of his ethnic group] whom he was attempting to recruit that the crimes committed by [the Group] could be tolerated …

…

67. Mr. MJS suggests that he could not have had a shared common purpose with [the Group] with regard to the atrocities committed by this organization since he mobilized the international community against these atrocities, condemned the atrocities after [the Group]’s rise to power and refused many favours offered to him by [the Group]. Yet there is very little evidence on the record showing that Mr. MJS made such denunciations during the period he was found to be complicit in the war crimes and crimes against humanity committed by [the Group], that is, between 1999 and 2003. According to … his own testimony, he made these denunciations after 2005 …

68. Mr. MJS also states that the evidence on the record demonstrates that he continued to work with the country’s secret service to stop the atrocities committed by [the Group]. In my opinion, it was not unreasonable for the Panel to determine implicitly that, even if this was Mr. MJS’s ultimate goal, there were serious grounds to believe that Mr. MJS was nonetheless complicit in the atrocities, in light of all the complicity factors the Panel considered in its decision …

(iv) Opportunity to leave the organization

69. With regard to the opportunity to leave [the Group], Mr. MJS submits that there was no way for him to withdraw from the organization without putting his life and the lives of his family in danger … [W]hen he became a member of [the Group] … he was made to understand that he would be killed if he tried to leave the organization … He also notes that … most of the members who refused to continue working for [the Group] were kidnapped at their homes, tortured or even killed.

70. In its decision, the Panel recognized that, generally speaking, dissociating himself from [the Group] or [the Agency] could result in Mr. MJS and the members of his family being harmed. However, the Panel found that after he was appointed [to a certain position], when he could have legitimately left the organization, Mr. MJS secretly remained a member of [the Group]. The Panel further noted that no documentary evidence was presented to establish that other people who had attempted to leave [the Group] or [the Agency] had been threatened or harmed. In light of the evidence, the Panel found that Mr. MJS did not clearly show that he could not leave [the Group], and that he could have made an effort to leave at any time.

71. In my opinion, the Panel’s decision on this point was not unreasonable. In fact, it is entirely consistent with the evidence showing that Mr. MJS became a member of [the Group] voluntarily and that he hoped to gain an important position once this organization was in power, after the elections. Mr. MJS had to demonstrate that there was imminent physical peril at any time during the period he was a voluntary member of [the Group] (Oberlander, above, at para 25). For the reasons set out above, it was not unreasonable for the Panel to conclude that Mr. MJS had not met this burden.

(v) Length of time in the organization

…

73. … [T]he Panel correctly identified this period as being from 1999 to 2003…

Conclusion concerning the Panel’s analysis of the evidence and the complicity factors

…

75. In my opinion, the Panel’s conclusion that Mr. MJS was complicit in the atrocities committed by [the Group] is within “a range of possible, acceptable outcomes which are defensible in respect of the facts and the law” and was sufficiently justified, transparent and intelligible (Dunsmuir, above, at para 47).

76. … It was therefore possible for the Panel to state its conclusion on the basis of the complicity factors, which, in the case at bar, reasonably suggest that Mr. MJS was complicit in the crimes committed by [the Group].

77. For the foregoing reasons, the Panel

…

iii. did not make an unreasonable analysis of any of the complicity criteria in the case law and did not reach an unreasonable conclusion regarding Mr. MJS’s complicity in the crimes referred to in section 98 of the Act.

In 2013, in the Habinshuti case, the Immigration Appeal Division of Canada’s Immigration and Refugee Board allowed the appeal of the Minister of Public Safety and Emergency Preparedness against the decision that had found the respondent admissible to Canada. The Immigration Appeal Division stated:

4. The Minister in this case alleges that the ID [Immigration Division] Member rejected evidence which demonstrated that the respondent was someone with authority and responsibilities in the Rwandan government and alleges that the Member erroneously interpreted the scope of paragraph 35(1)(b) [of the Immigration and Refugee Protection Act on inadmissibility to Canada by virtue of being a prescribed senior official in the service of a government that engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity] to be very narrow. The Minister submits that there is evidence to support that that respondent exerted power and influence as a senior official in a designated regime and that the respondent fits the definition of “prescribed senior official” as defined in section 16 of the Immigration and Refugee Protection Regulations (the Regulations), which reads as follows:

16. For the purposes of paragraph 35(1)(b) of the Act, a prescribed senior official in the service of a government is a person who, by virtue of the position they hold or held, is or was able to exert significant influence on the exercise of government power or is or was able to benefit from their position, and includes

(a) heads of state or government;

(b) members of the cabinet or governing council;

(c) senior advisors to persons described in paragraph (a) or (b);

(d) senior members of the public service;

(e) senior members of the military and of the intelligence and internal security services;

(f) ambassadors and senior diplomatic officials; and

(g) members of the judiciary.

5. Consequently … this tribunal must determine whether there are reasonable grounds to believe that the respondent was a prescribed official within the government of Rwanda during the relevant period which in this case extends from July 1992 until April 1994.

…

11. The respondent began his civil service career when he was personally recruited by Ms. Agathe Uwilingiyimana who was then Minister of Education and would later become Prime Minister of Rwanda … The tribunal is of the view that it is unlikely that the Prime Minister would be personally involved in recruiting or staffing positions unless such positions are significant ones.

12. The respondent was initially hired by the newly formed Ministry of Information as Head of Division, in charge of relations with press attachés in other Ministries. As appears from the respondent’s Curriculum Vitae, he was responsible for coordinating and following up on activities of press attachés in various Ministries, activities which are consistent with those of a Division Head …

13. The function of training and monitoring press attachés is an important one as it involves getting the right message to the public, locally and internationally.

…

16. The respondent was subsequently hired by Ms. Uwilingiyimana herself in July 1993 to be her private secretary … The period of time when the respondent worked as private secretary to Ms. Uwilingiyimana is the period of time when the government of Rwanda was identified as a designated regime.

17. The respondent’s appointment as private secretary entailed an increase in his duties which became more significant. In his capacity as private secretary, the respondent received and dealt with issues of a confidential nature, managed the Prime Minister’s agenda and upon request, advised the Prime Minister on miscellaneous issues. According to the documentary evidence [the applicant’s résumé] submitted by the respondent, he was “in charge of the Prime Minister’s diary and sometimes received confidential mail from the bureau of Intelligence[”].

…

19. … [T]he tribunal believes that the respondent actually carried out the duties which he listed on his résumé and which correspond to those of a senior executive assistant or advisor rather than those of a clerk.

…

25. The Minister argues, and the tribunal concurs, that … he was involved in positions which gave him the authority to carry out the tasks enumerated on his résumé. If we consider the tasks enumerated, it is reasonable to conclude that these duties were those which can be ascribed to a senior official.

26. … [T]he respondent returned to a position in the upper echelons of Rwandan public service after the event of April 1994 …

27. In October 1994, the respondent assumed the role of head of Social Affairs in the Prime Minister’s office and, subsequently, he held the position of Information and Press Director in the Prime Minister’s office.

…

31. The respondent testified that he had no involvement whatsoever in the organization of a meeting which was held at the home of the Prime Minister and which appears, by all accounts, to have been a turning point in the history of Rwanda as it led to the assassination of the Prime Minister and the Rwandan genocide.

…

41. The documentary evidence submitted by the Minister suggests that the meeting of April 2nd, 1994, was a very important one in Rwandan politics as the Prime Minister was attempting to reform the military. The information that the Prime Minister was meeting with the military was used by Hutu extremists to suggest th[at] a
coup was being planned. The respondent has been credibly identified as having been the originator of such meeting in conjunction with a military officer. In light of such information, the tribunal concludes that the respondent was influential in policy making and his role was politically significant as he had the potential to exercise significant influence on the exercise of government power.

42. The career progression of the respondent from language teacher to various positions within the Prime Minister’s office is simply inconsistent with the notion of the respondent having been a mere clerk …

…

50. The tribunal is of the view that the respondent’s résumé indicates that the respondent had authority and responsibilities in the Rwandan government …

51. The ID found that there were reasonable grounds to believe that the respondent was involved in the planning of the meeting of April 2, 1994 and reiterated the fact that an internationally recognized expert on the subject named the respondent as a co originator of such meeting.

52. The tribunal concludes that there are reasonable grounds to believe that the respondent was someone with authority and responsibilities in the Rwandan government, concludes that there are reasonable grounds to believe that th[e] respondent exerted power and influence as a senior official in a designated regime and that the respondent consequently fits the definition of “prescribed senior official” as defined in section 16(c) of the Regulations. Consequently, the respondent is inadmissible to Canada under paragraph 35(1)(b) of the Act.

53. The tribunal concludes that the decision of the ID must be set aside. Consequently, this appeal is allowed.

In 2013, in the Gebremedhin case, Canada’s Federal Court upheld the decision declaring the applicant inadmissible to Canada because of serious grounds to believe he had been involved in the commission of crimes against humanity in Ethiopia between 1978 and 1991. The Court stated:

5. The Applicant was found inadmissible to Canada under both s. 35(1)(a) and s. 35(1)(b) of IRPA [Immigration and Refugee Protection Act] because of the crimes against humanity committed by the Dergue [the Coordinating Committee of the Armed Forces, Police, and Territorial Army that ruled Ethiopia from 1974 to 1987]:

35. (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for

(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act [which state that a foreign national is inadmissible in Canada if he/she has committed outside Canada a war crime, a crime against humanity or genocide];

(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; …

6. The Officer concluded that the Applicant was a senior member of the public service, a prescribed senior official for the purposes of s. 35(1)(b) in accordance with s. 16 of the Immigration and Refugee Protection Regulations, SOR/202-227 [the Regulations]:

16. For the purposes of paragraph 35(1)(b) of the Act, a prescribed senior official in the service of a government is a person who, by virtue of the position they hold or held, is or was able to exert significant influence on the exercise of government power or is or was able to benefit from their position, and includes

(a) heads of state or government;

(b) members of the cabinet or governing council;

(c) senior advisors to persons described in paragraph (a) or (b);

(d) senior members of the public service;

(e) senior members of the military and of the intelligence and internal security services;

(f) ambassadors and senior diplomatic officials; and

(g) members of the judiciary.

…

19. To establish inadmissibility under … section [35 of the Immigration and Refugee Protection Act], the standard of proof is “reasonable grounds to believe”, as noted in s. 33 of IRPA. This standard requires more than “mere suspicion” but less than proof on a balance of probabilities (Mugesera, above at paras 114–115).

20. Complicity under s. 35(1)(a) [of the Immigration and Refugee Protection Act] must be established through personal and knowing participation when the relevant organization is not a limited brutal purpose organization (Ezokolav Canada (Minister of Citizenship and Immigration), 2011 FCA 224 at paras 52–60, 69–70, [2011] 3 FCR 417 ] at paras 52–57).

21. Nonetheless, active and direct participation – in the sense of aiding and abetting the commission of atrocities – is not required. If a senior official remains in his or her position, defends the interests of the government for whom he or she works and is aware of the relevant atrocities, this is sufficient to demonstrate complicity (Ezokola, above at para 72; Nsika v Canada (Minister of Citizenship and Immigration), 2012 FC 1026 at para 18, [2012] FCJ No 1112 [Nsika).

22. The Federal Court of Appeal articulated six factors relevant to participation in Bahamin v Canada (Minister of Employment and Immigration) (1994), 171 NR 79, [1994] FCJ No 961 Bahamin: the nature of the organization; method of recruitment; position/rank in the organization; knowledge of atrocities; length of time in the organization; and opportunity to leave the organization. The Bahamin factors continue to be recognized by the Federal Court and remain good law (Nsika, above at paras 23, 25).

…

25. The Applicant asserts that the Officer’s complicity finding is unreasonable because the issue of active participation was not considered in the context of an organization that did some legitimate aid work and also committed atrocities. I do not agree. Active participation is not necessary for a finding of complicity.

…

32. … [T]he Officer also concluded that the Applicant’s senior position within the RRC [Relief and Rehabilitation Commission, an agency of the Ethiopian Government involved in the distribution of food aid to civilians in the Eritrea region of Ethiopia] resulted in a finding of inadmissibility pursuant to s. 35(1)(b).

33. Section 35(1)(b) states that individuals who are prescribed senior officials in governments that engage in or have engaged in systematic or gross human rights violations are inadmissible to Canada. Prescribed senior officials are listed in s. 16 of the Regulations, as noted above. To establish inadmissibility under this section, the standard of proof is also “reasonable grounds to believe” (Mugesera, above at paras 114–115).

34. Section 35(1)(b) of the IRPA requires the decision-maker to analyze whether the applicant’s position in the organization was senior on an appropriate evidentiary basis (Hamidi v Canada (Minister of Citizenship and Immigration), 2006 FC 333 at paras 24–26, 289 FTR 110).

35. ENF 18, the CIC [Citizenship and Immigration Canada] Policy Document relating to war crimes and crimes against humanity, states that a finding under s. 35(1)(b) based on senior membership in the public service requires the designation of the regime, proof of the position held and proof that this position is senior … ENF 18 also explains how an officer may determine whether a position is senior:

If it can be demonstrated that the position is in the top half of the organization, the position can be considered senior. This can be further established by evidence of the responsibilities attached to the position and the type of work actually done or the types of decisions made (if not by the applicant then by holders of similar positions).

…

37. Contrary to the Applicant’s submissions, the Officer considered the appropriate issue in finding that the Applicant was a senior member of the public service, and not just a senior member of the RRC …

…

39. In my view, the Officer’s findings are reasonable.

40. Firstly, the documentary evidence demonstrates that the RRC was an important organization in the Ethiopian government … [T]he RRC played a significant role in the government and in the crimes against humanity referred to by the Officer relating to the diversion of food aid.

41. Secondly, the Applicant’s evidence at his interview is consistent with a senior position not only in the RRC, but also in the Ethiopian government …

42. The chart drawn at the interview places the Applicant’s position only two levels below the Commissioner of the RRC, who was the top of that organization. Given the RRC’s key role, it was not unreasonable to find that the Applicant was a senior member of the public service.

In 2013, in the Fofana case, Canada’s Federal Court, in rejecting an appeal to remain in Canada on grounds of involvement in war crimes in Côte d’Ivoire, stated:

3. [The applicant’s] request [of asylum] led to a decision by the Refugee Protection Division (RPD), which concluded that the applicant should be excluded from [the protection of] the [1951] Refugee Convention as Article 1F of the Convention [excluding from refugee protection persons who have committed, inter alia, crimes against peace, humanity and war crimes] applies. Plainly, those covered by that Article cannot obtain international protection in countries if they claim refugee protection. It is sufficient to establish that there are serious reasons for considering that the acts were committed by the individual (including complicity); this standard is of course lower than the criminal law standard, which requires proof beyond a reasonable doubt, but it is higher than the mere existence of suspicions. Evidence must be established.

4. In this case, the RPD stated that it was satisfied that, for two years, the applicant was present at a roadblock with a rebel group (Forces Nouvelles), where he took part in extorting money from travellers. Indeed, the applicant admitted his participation during those two years. The RPD was also satisfied that these extortion practices took place as part of an armed conflict not of an international character. This is what is required to conclude that there are serious reasons for considering that the applicant committed a war crime. He could not therefore benefit from Canada’s protection as a refugee.

5. … The applicant then applied for permanent residence under section 25 of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) [on the possibility for the Minister to grant a permanent resident status on the basis of humanitarian and compassionate considerations to a foreign national who would not be entitled to it] …

6. An immigration officer disposed of that last application on April 9, 2013 …

…

8. … [I]t was the decision of April 9 refusing the application under section 25 that is the subject of judicial review and the legal remedy underlying the stay application …

…

14. … [G]iven the finding I have made on procedural issues, a quick review of the legal criteria that must be met will suffice.

15. A person who applies for a stay must meet a three-pronged test in this regard:

(1) Is there a serious issue to be tried?

(2) Will the applicant suffer irreparable harm?

(3) Does the balance of convenience lie in the applicant’s favour?

To succeed, the applicant must satisfy the Court that the answer to each of these questions is yes …

…

19. It must be conceded that the application under section 25 of the Act, which includes the consideration of the best interests of the child, is an exceptional and highly discretionary measure. …

20. … [A] review of the immigration officer’s decision … shows that particular attention was given to the issue. The immigration officer was “alert, alive and sensitive” to the interests of the child. Reading her reasons can only convince me that, in the context of an application for a stay of a removal order, the immigration officer exercised discretion reasonably …

21. Undoubtedly, it is desirable for children to enjoy the presence of both their parents. But the Federal Court of Appeal is clear: it falls to the Minister’s representative to attribute the weight that is appropriate. In doing so, the Minister or his or her representative must also consider the integrity of the immigration system. …

22. In this case, the immigration officer did just that. There may be a little bit of hyperbole in the immigration officer’s conclusion, but that does not take anything away from the fact that discretion must take into account other considerations:

…

I took the family background into account, and I was especially sensitive to the best interests of the child. However, these factors are not more important than all the others, and, in my balancing, I gave more weight to the acts committed on behalf of the Forces Nouvelles rebels, who were guilty of generalized abuses towards civilians: extortion, rape, arbitrary detention and sometimes execution.

…

25. It flows from this that the applicant failed the first component of the test. That is fatal. It is sufficient to fail one of the three components of the test for the stay to be refused. But he would also have failed the second and third components … It is settled law in this Court that the mere presence of children is insufficient, in itself, to establish irreparable harm. This is even less so when the reasons for removal are of the type at issue in this case.

In 2013, in the Sapkota case, Canada’s Federal Court, while dismissing the request for review of the decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009, stated:

1. The Applicant seeks judicial review of a decision of the Refugee Protection Division [RPD] of the Immigration and Refugee Board … wherein it was determined that he is excluded from refugee protection on the basis that he was complicit in crimes against humanity in Nepal as he was a member of the Nepali Police Force [NPF] pursuant to Article 1F(a) [denying refugee protection to persons involved in crimes against humanity, against peace and war crimes] of the United Nations Convention Relating to the Status of Refugees [1951] [Refugee Convention] …

…

43. There is substantive documentary evidence in the CTR [certified tribunal record] to the effect that the NPF was directly involved in torture, extrajudicial executions, random killings, abuse in detention, rape, etc. during the Maoist revolution, which started in 1996. Moreover, a reading of the RPD’s decision shows that it properly considered … whether the acts committed by the NPF rise to the level of a crime against humanity …

…

45. With regards to the RPD’s determination as to complicity, the case law is to the effect that active membership is not required but that a person is considered as complicit if he contributes to the organization while being aware that it is committing crimes against humanity (Ramirez, above). Complicity rests on the existence of a shared common purpose and the common knowledge that all of the parties may have of it, which is defined as “personal and knowing participation” (Sivakumar v Canada (Minister of Employment and Immigration), [1994] 1 FC [Federal Court] 433, 163 NR 197 (FCA [Federal Court of Appeal])). If a senior official remains in his or her position, defends the interests of the government for whom he or she works and is aware of the relevant atrocities, this is sufficient to demonstrate complicity (Canada (Minister of Citizenship and Immigration) v Ezokola, 2011 FCA 224 at para 72, 335 DLR (4th) 164).

46. The Federal Court of Appeal articulated six (6) factors relevant to participation in Bahamin v Canada (Minister of Employment and Immigration) (1994), 171 NR 79, [1994] FCJ [Federal Court of Justice] No 961: the nature of the organization, method of recruitment; position/rank in the organization, knowledge of atrocities, length of time in the organization, and opportunity to leave the organization. Each of them was considered by the RPD.

47. As for the Applicant’s position in the organization, the Federal Court of Appeal established the following principle in Sivakumar, above at 202: “Bearing in mind that each case must be decided on its facts, the closer one is to being a leader rather than an ordinary member, the more likely it is that an inference will be drawn that one knew of the crime and shared the organization’s purpose in committing that crime.”

48. The Applicant’s position in the NPF is probably one of the most illustrative indicators of his complicity in the atrocities committed. The Applicant was posted at the Central Jail in Sundhara, Kathmandu, where detainees included Maoists. He occupied a high level position, working just under the supervision of the Inspector, who was working under the supervision of the Deputy Superintendent of Police, who held the highest position at the jail. He was also in direct contact with the detainees as he took care of their transfer and made sure no one escaped. Therefore, it may reasonably be inferred that while fulfilling his duties which included ensuring that no one escaped and transporting detainees, the Applicant was complicit in the human rights abuses, especially considering his high position while working at the jail. Indeed, it has been reliably established that the NPF did commit acts of torture on detainees.

49. Moreover, before working at the Kathmandu jail, he fought Maoist rebels for about ten (10) years, while occupying various positions in the NPF, which all granted him a leadership and supervisory role. Indeed, he was at all times, responsible of a group of thirty (30) to forty (40) policemen.

50. With regards to complicity, the RPD’s findings are reasonable. It is a well established principle that a refugee claimant need not necessarily have participated directly in the perpetration of human rights abuses and crimes against humanity by the organization to which he belongs in order for him to be found an accomplice to such acts (see Ramirez, above). Therefore, it was not necessary for the RPD to have evidence showing the Applicant’s personal implication in the crimes specifically, in order to determine that he committed a crime against humanity (Mata Mazima v Canada (Minister of Citizenship and Immigration), 2012 FC 698 at para 26, 223 ACWS (3d) 1010).

51. As for his knowledge of the abuses, his alleged ignorance of the abuses committed by the NPF was found not to be credible by the RPD …

…

54. Although membership in itself will not suffice to establish complicity, it is however a relevant factor in determining personal and knowing participation. The Applicant belonged to an organization engaged in crimes against humanity, for a total of eighteen (18) years. For more than ten (10) years, the organization was known to be involved in crimes against humanity committed against the Maoists. The Applicant has not pointed to any evidence showing that he disapproved of the actions committed by the NPF. To the contrary, although he denies ever being aware of the acts committed by the NPF, he decided to stay with this organization although it kept on committing serious human rights abuses.

55. … [T]he RPD decision did rightly apply the law with the facts of this case. It is well written and deals with the facts in a meticulous way. There is no reason to intervene. It is a reasonable decision.

In 2013, in the Ezokola case, Canada’s Supreme Court allowed an appeal against the applicant’s exclusion from refugee protection on grounds of complicity in crimes against humanity in the Democratic Republic of the Congo, remitting the matter to the Refugee Protection Division of the Immigration and Refugee Board. The Court stated:

I. Introduction

1. Criminal responsibility does not fall solely upon direct perpetrators of crime. A murder conviction, for example, can attach equally to one who pulls the trigger and one who provides the gun. Complicity is a defining characteristic of crimes in the international context, where some of the world’s worst crimes are committed often at a distance, by a multitude of actors.

2. While principal perpetrators may be distinguished from secondary actors for sentencing, the distinction is irrelevant for the purposes of art. 1F(a) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”). Article 1F(a) excludes individuals from the definition of “refugee” if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity”. Those who commit these offences are not entitled to the humanitarian protection provided by the Refugee Convention. Where exclusion from refugee status is the only “sanction”, it is not necessary to distinguish between principals, aiders and abettors, or other criminal participants. Individuals may be excluded from refugee protection for international crimes through a variety of modes of commission.

3. Guilt by association, however, is not one of them.

4. This appeal homes in on the line between association and complicity. It asks whether senior public officials can be excluded from the definition of “refugee” by performing official duties for a government that commits international crimes. It is the task of this Court to determine what degree of knowledge and participation in a criminal activity justifies excluding secondary actors from refugee protection. In other words, for the purposes of art. 1F(a), when does mere association become culpable complicity?

5. In contrast to international crime, determining responsibility for domestic crime is often direct. While party liability plays a role, domestic criminal law, in its simplest form, asks whether one individual has committed one crime against one victim. In international criminal law, the focus often switches to the collective and to the links between individuals and collective action. International criminal law typically asks whether a group of individuals, an organization or a state has committed a series of crimes against a group of victims. In other words, party liability plays a much greater role in the commission of those crimes recognized as some of the most serious in the international legal order …

6. Aware of the collective aspects of international crime, the Federal Court of Appeal correctly concluded that senior officials may be held criminally responsible for crimes committed by their government if they are aware of the crimes being committed yet remain in their position without protest and continue to defend the interests of the government.

7. However, this does not mean that high-ranking government officials are exposed to a form of complicity by association. Complicity arises by contribution. The collective nature of many international crimes does not erase the importance of holding an individual responsible only for his or her own culpable acts …

8. While individuals may be complicit in international crimes without a link to a particular crime, there must be a link between the individuals and the criminal purpose of the group – a matter to which we will later return. In the application of art. 1F(a), this link is established where there are serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose. As we shall see, a broad range of international authorities converge towards the adoption of a “significant contribution test”.

9. This contribution-based approach to complicity replaces the personal and knowing participation test developed by the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306. In our view, the personal and knowing participation test has, in some cases, been overextended to capture individuals on the basis of complicity by association. A change to the test is therefore necessary to bring Canadian law in line with international criminal law, the humanitarian purposes of the Refugee Convention, and fundamental criminal law principles.

10. We would therefore allow the appeal and send the matter back to a different panel of the Refugee Protection Division of the Immigration and Refugee Board (the “Board”) for redetermination in accordance with these reasons. The panel will decide whether there are serious reasons for considering that the appellant’s knowledge of, and participation in, the crimes or criminal purposes of his government meet the complicity by contribution test. …

…

II. Analysis

A. Issues

[28] Whether or not the appellant should ultimately be excluded from refugee protection for having committed international crimes will be determined by the Board at a de novo hearing. The task for this Court is to determine what test for complicity will be applied by the art. 1F(a) decision maker. To answer this question, the Court must also address the evidentiary standard applicable to art. 1F(a) determinations.

29. For the reasons that follow, we conclude that an individual will be excluded from refugee protection under art. 1F(a) for complicity in international crimes if there are serious reasons for considering that he or she voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime …

30. In rejecting a guilt-by-association approach to complicity, we have considered (i) the purpose of the [1951] Refugee Convention and art. 1F(a); (ii) the role of the [Immigration and Refugee] Board; (iii) the international law to which art. 1F(a) expressly refers; and (iv) the approach to complicity under art. 1F(a) taken by other state parties to the [1951] Refugee Convention. Each of these demonstrates the need to rein in the Canadian approach to complicity under art. 1F(a) to ensure that individuals are not excluded from refugee protection for merely being associated with others who have perpetrated international crimes.

B. The Purpose of the [1951] Refugee Convention and Article 1F(a)

31. In our view, the purpose of the [1951] Refugee Convention, together with the purpose of art. 1F(a), sheds light on the proper approach for determining exclusions from refugee protection based on complicity in international crimes: [1969] Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, art. 31.

33. That said, the [1951] Refugee Convention’s commitment to refugee protection is broad, but not unbounded. It does not protect international criminals. Incorporated directly into Canadian law by s. 98 of the IRPA [Immigration and Refugee Protection Act], art. 1F(a) guards against abuses of the [1951] Refugee Convention by denying refugee protection to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

…

35. On the one hand … if we approach art. 1F(a) too narrowly, we risk creating safe havens for perpetrators of international crimes – the very scenario the exclusion clause was designed to prevent. On the other hand, a strict reading of art. 1F(a) arguably best promotes the humanitarian aim of the [1951] Refugee Convention: United Nations High Commissioner for Refugees (“UNHCR”), “Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”, HCR/GIP/03/05, September 4, 2003 … at para. 2.

36. The foregoing demonstrates the need for a carefully crafted test for complicity – one that promotes the broad humanitarian goals of the [1951] Refugee Convention but also protects the integrity of international refugee protection by ensuring that the authors of crimes against peace, war crimes, and crimes against humanity do not exploit the system to their own advantage. As we will explain, these two aims are properly balanced by a contribution-based test for complicity – one that requires a voluntary, knowing, and significant contribution to the crime or criminal purpose of a group.

C. The Role of the Refugee Protection Division: Exclusion Determinations, not Findings of Guilt

37. In addition to the purposes of the [1951] Refugee Convention and art. 1F(a), the test for complicity must reflect the role of the Board and must work within the practical realities of refugee proceedings.

38. A refugee hearing is not a criminal trial before an international tribunal. International criminal tribunals render verdicts for some of the most serious crimes in the international legal order. In contrast, the Board makes exclusion determinations; it does not determine guilt or innocence. The purpose of art. 1F(a) “is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status”: Pushpanathan, at para. 58.

…

41. In light of these features of refugee proceedings, it is unnecessary to craft a multitude of tests for each mode of commission through which a government official may be held complicit in the crimes committed by his or her government …

D. The Board Must Rely on International Law to Interpret Article 1F(a)

42. Following the express direction in the text of art. 1F(a), we now turn to international law for guidance. As mentioned, art. 1F(a) excludes individuals when “there are serious reasons for considering that” they have “committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments”. We must therefore consider international criminal law to determine whether an individual should be excluded from refugee protection for complicity in international crimes: Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, 302 N.R. 178, at para. 8. We will also look to international jurisprudence for guidance: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at paras. 82 and 126.

…

45. International criminal law, while built upon domestic principles, has adapted the concept of individual responsibility to this setting of collective and large-scale criminality, where crimes are often committed indirectly and at a distance. As Gerhard Werle puts it, at p. 954:

When allocating individual responsibility within networks of collective action, it must be kept in mind that the degree of criminal responsibility does not diminish as distance from the actual act increases; in fact, it often grows. Adolf Hitler, for example, sent millions of people to their deaths without ever laying a hand on a victim himself. And mass killer Adolf Eichmann organized the extermination of European Jews from his office in the Berlin headquarters of the “Reichssicherheitshauptamt” of the SS.

…

50. Article 25 of the [1998 ICC] Rome Statute provides extensive descriptions of modes of commission. These enumerated modes of liability have been described as the culmination of the international community’s efforts to codify individual criminal responsibility under international law …

51. That said, we may not rely exclusively on the approach of the International Criminal Court (“ICC”) to complicity. Despite its importance, the Rome Statute cannot be considered as a complete codification of international criminal law. International criminal law derives from a diversity of sources which include the growing body of jurisprudence of international criminal courts … Article 1F(a) of the Refugee Convention refers generally to international instruments and the ICC itself has relied on the jurisprudence of ad hoc tribunals to interpret its own statute … In Mugesera, at paras. 82 and 126, this Court highlighted the international law expertise of the ad hoc tribunals and explained that the decisions of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda “should not be disregarded lightly by Canadian courts applying domestic legislative provisions . . . which expressly incorporate customary international law”: para. 126. Accordingly, while our focus will remain on the most recent codification of international criminal law in the Rome Statute, we will also consider other sources, more particularly the jurisprudence of the ad hoc tribunals.

52. As explained above, we are concerned here with the dividing line between mere association and culpable complicity. While further distinctions between modes of commission may be important for sentencing purposes, exclusion from refugee protection applies when there are serious reasons for considering that an individual has committed an international crime, whatever the mode of commission happens to be. Our task then is to identify threshold criteria for the application of the exclusionary clause, art. 1F(a) of the Refugee Convention. Accordingly, the broadest modes of commission recognized under current international criminal law are most relevant to our complicity analysis, namely, common purpose liability under art. 25(3)(d) of the Rome Statute and joint criminal enterprise developed in the ad hoc jurisprudence.

53. These two related modes have adapted the concept of individual criminal responsibility to the collective aspects of international crime. However, as the following analysis will show, individual criminal responsibility has not been stretched so far as to capture complicity by mere association or passive acquiescence. In other words, when we look to international criminal law for guidance, even the broadest modes of commission require a link between the individual and the crime or criminal purpose of a group …

E. Common Purpose Under Article 25(3)(d) of the Rome Statute

…

F. Joint Criminal Enterprise

…

G. Summary of Complicity under International Law

68. In sum, while the various modes of commission recognized in international criminal law articulate a broad concept of complicity, individuals will not be held liable for crimes committed by a group simply because they are associated with that group, or because they passively acquiesced to the group’s criminal purpose. At a minimum, complicity under international criminal law requires an individual to knowingly (or, at the very least, recklessly) contribute in a significant way to the crime or criminal purpose of a group.

H. Comparative Law and Decisions of Other National Courts

…

77. In sum, the foregoing approaches to complicity all require a nexus between the individual and the group’s crime or criminal purpose. An individual can be complicit without being present at the crime and without physically contributing to the crime. However, the UNHCR has explained, and other states parties have recognized, that to be excluded from the definition of refugee protection, there must be evidence that the individual knowingly made at least a significant contribution to the group’s crime or criminal purpose. Passive membership would not be enough, as indicated above in paras. 70–76.

I. The Canadian Approach to Criminal Participation Has Been Overextended

78. Before being overturned by the Federal Court of Appeal, the Federal Court’s decision in this case was viewed as a potential signal of “a clearer jurisprudence, more closely tied to international standards and to the original wording of the Convention” … The Federal Court rightly concluded that neither mere membership in a government that had committed international crimes nor knowledge of those crimes is enough to establish complicity: para. 4.

79. In our view, the Federal Court’s approach in this case brings appropriate restraint to the test for complicity that had, in some cases, inappropriately shifted its focus towards the criminal activities of the group and away from the individual’s contribution to that criminal activity …

…

81. In our view, it is necessary to rearticulate the Canadian approach to art. 1F(a) to firmly foreclose exclusions based on such broad forms of complicity. Otherwise, high ranking officials might be forced to abandon their legitimate duties during times of conflict and national instability in order to maintain their ability to claim asylum. Furthermore, a concept of complicity that leaves any room for guilt by association or passive acquiescence violates two fundamental criminal law principles.

82. It is well established in international criminal law that criminal liability does not attach to omissions unless an individual is under a duty to act … Accordingly, unless an individual has control or responsibility over the individuals committing international crimes, he or she cannot be complicit by simply remaining in his or her position without protest: Ramirez, at pp. 319–20. Likewise, guilt by association violates the principle of individual criminal responsibility. Individuals can only be liable for their own culpable conduct …

83. Accordingly, the decision of the Federal Court of Appeal should not be taken to leave room for rank-based complicity by association or passive acquiescence. Such a reading would perpetuate a departure from international criminal law and fundamental criminal law principles.

J. The Canadian Test for Complicity Refined

84. In light of the foregoing reasons, it has become necessary to clarify the test for complicity under art. 1F(a). To exclude a claimant from the definition of “refugee” by virtue of art. 1F(a), there must be serious reasons for considering that the claimant has voluntarily made a significant and knowing contribution to the organization’s crime or criminal purpose.

85. We will address these key components of the contribution-based test for complicity in turn. In our view, they ensure that decision makers do not overextend the concept of complicity to capture individuals based on mere association or passive acquiescence.

(1) Voluntary Contribution to the Crime or Criminal Purpose

86. … [T]he contribution to the crime or criminal purpose must be voluntarily made. While this element is not in issue in this case, it is easy to foresee cases where an individual would otherwise be complicit in war crimes but had no realistic choice but to participate in the crime. To assess the voluntariness of a contribution, decision makers should, for example, consider the method of recruitment by the organization and any opportunity to leave the organization …

(2) Significant Contribution to the Group’s Crime or Criminal Purpose

87. … [M]ere association becomes culpable complicity for the purposes of art. 1F(a) when an individual makes a
significant contribution to the crime or criminal purpose of a group. As Lord Brown J.S.C. said in J.S., to establish the requisite link between the individual and the group’s criminal conduct, the accused’s contribution does not have to be “directed to specific identifiable crimes” but can be directed to “wider concepts of common design, such as the accomplishment of an organisation’s purpose by whatever means are necessary including the commission of war crimes”: para. 38 …

88. Given that contributions of almost every nature to a group could be characterized as furthering its criminal purpose, the degree of the contribution must be carefully assessed. The requirement of a significant contribution is critical to prevent an unreasonable extension of the notion of criminal participation in international criminal law.

(3) Knowing Contribution to the Crime or Criminal Purpose

89. To be complicit in crimes committed by the government, the official must be aware of the government’s crime or criminal purpose and aware that his or her conduct will assist in the furtherance of the crime or criminal purpose.

…

(4) Applying the Test

91. Whether there are serious reasons for considering that an individual has committed international crimes will depend on the facts of each case. Accordingly, to determine whether an individual’s conduct meets the actus reusand mens rea for complicity, several factors may be of assistance …

(i) the size and nature of the organization;

(ii) the part of the organization with which the refugee claimant was most directly concerned;

(iii) the refugee claimant’s duties and activities within the organization;

(iv) the refugee claimant’s position or rank in the organization;

(v) the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and

(vi) the method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization.

…

94. The size and nature of the organization. The size of an organization could help determine the likelihood that the claimant would have known of and participated in the crime or criminal purpose. A smaller organization could increase that likelihood. That likelihood could also be impacted by the nature of the organization. If the organization is multifaceted or heterogeneous, i.e. one that performs both legitimate and criminal acts, the link between the contribution and the criminal purpose will be more tenuous. In contrast, where the group is identified as one with a limited and brutal purpose, the link between the contribution and the criminal purpose will be easier to establish … That said, even for groups with a limited and brutal purpose, the individual’s conduct and role within the organization must still be carefully assessed, on an individualized basis, to determine whether the contribution was voluntarily made and had a significant impact on the crime or criminal purpose of the group.

95. The part of the organization with which the refugee claimant was most directly concerned. This factor may be relevant if particular parts of the organization were known to be involved with the crime or criminal purpose. For example, where only one part of the organization in question was involved in the crime or criminal purpose, a claimant’s exclusive affiliation with another part(s) of the organization may serve to exonerate him or her for the purpose of art. 1F(a).

96. The refugee claimant’s duties and activities within the organization … The Board should consider the link between the duties and activities of a claimant, and the crimes and criminal purposes of the organization.

97. The refugee claimant’s position or rank in the organization. A high ranking individual in an organization may be more likely to have knowledge of that organization’s crime or criminal purpose. In some cases, a high rank or rapid ascent through the ranks of an organization could evidence strong support of the organization’s criminal purpose …

98. The length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose. It may be easier to establish complicity where an individual has been involved with the organization for a longer period of time. This would increase the chance that the individual had knowledge of the organization’s crime or criminal purpose. A lengthy period of involvement may also increase the significance of an individual’s contribution to the organization’s crime or criminal purpose.

99. The method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization … This requirement may not be satisfied if an individual was coerced into joining, supporting, or remaining in the organization …

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K. Evidentiary Standard: Serious Reasons for Considering

101. Ultimately, the above contribution-based test for complicity is subject to the unique evidentiary standard contained in art. 1F(a) of the [1951] Refugee Convention. To recall, the Board does not make determinations of guilt. Its exclusion decisions are therefore not based on proof beyond a reasonable doubt nor on the general civil standard of the balance of probabilities. Rather, art. 1F(a) directs it to decide whether there are “serious reasons for considering” that an individual has committed war crimes, crimes against humanity or crimes against peace.

In an annual report issued in 2003 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:

The policy of the Canadian Government is unequivocal: Canada is not and will not become a safe haven for persons involved in war crimes, crimes against humanity or other reprehensible acts regardless of when or where they occurred.

Canada, Sixth Annual Report, Canada’s Program on Crimes against Humanity and War Crimes, 2002–2003, p. 1.

In an annual report issued in 2004 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:

The policy of the Government of Canada is unequivocal. Canada will not be a safe haven for persons involved in war crimes, crimes against humanity or other reprehensible acts.

Canada, Seventh Annual Report, Canada’s Program on Crimes against Humanity and War Crimes, 2003–2004, p. 1.

In an annual report issued in 2005 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:

Canada’s War Crimes Program upholds the government’s position that Canada is not a safe haven for anyone involved or complicit in crimes against humanity, war crimes or genocide …

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The no safe haven policy means that persons involved or complicit in crimes against humanity or war crimes are not welcome in Canada. The partners in the coordinated War Crimes Program are the Canada Border Services Agency (CBSA), Citizenship and Immigration Canada (CIC), the Department of Justice (DOJ) and the Royal Canadian Mounted Police (RCMP). Senior officials from each department or agency share responsibility for managing the program through the Interdepartmental Operations Group, which meets regularly to discuss policy, coordinate operations and assess allegations. The CBSA, DOJ and RCMP each have specialized war crimes units.

Canada, Eighth Annual Report, Canada’s Program on Crimes against Humanity and War Crimes, 2004–2005, pp. 1–2.

In an annual report issued in 2006 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:

Canada’s program on crimes against humanity and war crimes upholds the Government of Canada’s policy that Canada is not a safe haven for anyone involved in crimes against humanity, war crimes or genocide.

…

The chief objective of the program is denial of safe haven in Canada to persons involved in war crimes, crimes against humanity or genocide. At the same time, Canada contributes to the global fight against impunity for war criminals through cooperation with other countries and international tribunals.

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The most effective measure to deny safe haven is the early detection and prevention of entry of suspected human rights abusers into Canada. This ability is legislated in the Immigration and Refugee Protection Act (IRPA) …

If persons suspected of involvement in atrocities do arrive in Canada or are found living in Canada, the program partners assess the situation to determine the most appropriate remedy. The partners have complementary roles in applying these remedies: criminal proceedings under the Crimes Against Humanity and War Crimes Act, on which the RCMP [Royal Canadian Mounted Police] and the DOJ [Department of Justice] work closely together; enforcement under the IRPA led by the CBSA [Canada Border Services Agency], including deportation and denial of access to and exclusion from refugee protection; and citizenship revocation proceedings under the Citizenship Act handled by CIC [Citizenship and Immigration Canada]. The CBSA only deals with modern cases. The DOJ leads the development of World War II cases with the assistance of the RCMP. The DOJ also handles extradition and surrender to international tribunals under the Extradition Act.

…

When a suspected war criminal enters Canada or is already living in Canada, a number of enforcement measures may be used, including exclusion from refugee status, findings of inadmissibility followed by deportation, extradition, surrender to international tribunals, criminal investigation and prosecution, and revocation of citizenship.

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Persons who come to Canada and make claims for refugee protection in Canada may have backgrounds that raise war crimes or crimes against humanity concerns. CBSA field officers investigate such cases, often with guidance from the Modern War Crimes Section in Ottawa or specialized regional offices. They may intervene at the refugee hearing before the Refugee Protection Division of the Immigration and Refugee Board of Canada (IRB) to seek the individual’s exclusion from the definition of a Convention refugee…

Persons excluded from refugee status or found inadmissible for war crimes or crimes against humanity can be deported after they have exhausted all legal avenues and CIC officials have conducted a pre-removal risk assessment on non-refugees. Persons whose citizenship has been revoked can also be subject to deportation.

Canada, Ninth Annual Report, Canada’s Program on Crimes against Humanity and War Crimes, 2005–2006, pp. 1, 3, 4 and 7.

In an annual report issued in 2007 on its Program on Crimes against Humanity and War Crimes, the Government of Canada stated:

… Canada’s War Crimes Program has evolved over the years but its primary goal remains unchanged: to deny safe haven in Canada to war criminals, that is, individuals who may have been either directly involved or complicit in the commission of war crimes, crimes against humanity or genocide.

…

The most effective measure to ensure that Canada is not a safe haven for suspected perpetrators of war crimes, crimes against humanity and genocide is their early detection and subsequent prevention of entry into Canada. This measure is legislated in the Immigration and Refugee Protection Act (IRPA) …

If persons suspected of involvement in atrocities do arrive in Canada or are found to be living in Canada, the program partners assess the situation to determine the most appropriate remedy. Remedies include the following: criminal proceedings jointly administered by the DOJ [Department of Justice] and the Public Prosecution Service of Canada (PPSC) based on investigations conducted by the RCMP [Royal Canadian Mounted Police] under the Crimes Against Humanity and War Crimes Act; enforcement of the IRPA led by the CBSA [Canada Border Services Agency], including denial of access to and exclusion from refugee protection and deportation; citizenship revocation led by CIC [Citizenship and Immigration Canada] and the DOJ; and extradition to foreign states and surrender to international tribunals under the Extradition Act, led by the DOJ.

…

While the intent of the program is to allow partners to choose from a range of complementary remedies to pursue in order to ensure that Canada is not a safe haven to perpetrators of human and international rights violations, partners reserve criminal investigation and prosecution, the most expensive options, to a fraction of the cases. In turn, partners diligently seek more cost-effective immigration processes such as early detection and prevention of entry into Canada to ensure that war criminals do not enter the country.

…

The most effective way to deny safe haven to people involved or complicit in war crimes or crimes against humanity is to prevent them from coming to Canada …

…

When a suspected war criminal enters Canada or is already living in Canada, a number of enforcement measures may be used, including exclusion from refugee status, findings of inadmissibility followed by deportation, extradition to foreign states, surrender to international tribunals, criminal investigation and prosecution, and the revocation of citizenship.

Canada, Tenth Annual Report, Canada’s Program on Crimes against Humanity and War Crimes, 2006–2007, pp. 1, 2, 3 and 4.

In an annual report issued in 2008 on its Program on Crimes Against Humanity and War Crimes, the Government of Canada stated:

Introduction

… The primary goal of the War Crimes Program is to deny safe haven in Canada to war criminals or those suspected of being directly involved or complicit in the commission of war crimes, crimes against humanity or genocide.

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Canada’s War Crimes Program—A Model of Collaboration

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The intent of the War Crimes Program is to provide a range of complementary remedies to ensure that Canada is not a safe haven for perpetrators of human and international rights violations. Remedies are restricted by available funding. Criminal investigations and prosecution, widely seen as essential to international justice, are the most expensive options and only pursued in a fraction of the cases. Therefore partners diligently seek the more cost-effective remedies such as early detection and denial of entry into Canada. However, this does not resolve the issue of potential war criminals already residing in the country.

War Crimes Program Activities from April 1, 2007, to March 31, 2008

Canada uses a holistic approach in its domestic and international fight against impunity of persons involved in war crimes, crimes against humanity or genocide. The Program has a broad arsenal of nine legislative remedies at its disposal, including including the ability to prevent war criminals from entering Canada through the Denial of Visas Overseas and Denials at Port of Entry; and methods to deal with war criminals already in Canada, using Exclusion; Admissibility Hearings; Removals; Revocation of Citizenship; Extradition; Surrender to International Criminal Tribunals; and Criminal Investigations and Prosecution. …

Remedies to Prevent Entry of War Criminals into Canada

Denial of Visas Overseas and Denials at Port of Entry

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Remedies for War Criminals in Canada

The War Crimes Program may proceed with any of the seven remaining remedies to deal with war criminals who have entered Canada: Exclusion of refugee status in the context of a refugee claim; Admissibility Hearings; Removal; Revocation of Citizenship; Extradition; Surrender to International Tribunals; and Criminal Investigations and Prosecution.

Exclusion

Persons making claims for refugee protection in Canada may have backgrounds that suggest involvement in war crimes, crimes against humanity or genocide. CBSA [Canada Border Services Agency] field officers investigate such cases, at times with guidance from the CBSA War Crimes Section in Ottawa or specialized regional offices. The CBSA may intervene at the refugee hearing before the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) of Canada to seek the individual’s exclusion from the definition of a [1951 Refugee] Convention refugee. The DOJ [Department of Justice] is consulted regularly for legal advice in the most complex cases.

In 2007–2008, CBSA officials investigated 612 refugee claimant cases and filed 80 interventions at refugee hearings in cases involving war crime allegations. RPD decisions on CBSA interventions included 26 exclusions from refugee protection on the grounds of war crimes or crimes against humanity, 34 refusals for reasons other than exclusion for war crimes, and 29 decisions to grant refugee protection. In another 21 cases, the claimant was considered to have withdrawn or abandoned the claim for protection.

These decisions include interventions filed in previous years, since refugee hearings in complex cases, such as those involving war crimes, do not necessarily open and conclude in the same year.

Admissibility Hearings

When allegations of war crimes or crimes against humanity are made against persons in Canada, the CBSA refers these cases to admissibility hearings before the IRB Immigration Division. If the persons are refugee claimants, the refugee claim is suspended pending the decision …

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Removal

Persons who are excluded from refugee status, who had their citizenship revoked, or who otherwise are found inadmissible for war crimes or crimes against humanity can be deported. Deportation occurs after they have exhausted all legal avenues and CIC officials have conducted a pre-removal risk assessment for non-refugees.

Canada, Eleventh Annual Report, Canada’s Program on Crimes against Humanity and War Crimes, 1 April 2007–31 March 2008, pp. 1–4.

In 2010, in its sixth periodic report to the Committee against Torture, Canada stated:

29. As noted by the Committee, exclusion under section 98 of the IRPA [Immigration and Refugee Protection Act] is used to reject claimants who are found not to be entitled to protection, because they are referred to in section E (persons who benefit from protection in another country) and section F (persons who have committed war crimes, crimes against humanity, serious non-political crimes or who are guilty of acts contrary to the purposes and principles of the United Nations) of Article 1 of the 1951 Refugee Convention. Section 98 incorporates these provisions of the Convention refugee definition into Canadian law.

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Article 7

Prosecution of persons alleged to have committed torture

44. As noted in Canada’s Fifth Report, an interdepartmental group, the Program Coordinating Operations Committee (PCOC) (formerly entitled the Interdepartmental Operations Group), coordinates investigation of allegations of crimes against humanity and war crimes under Canada’s War Crimes Program. The Committee ensures that the Government of Canada has properly addressed all allegations of war crimes and crimes against humanity against Canadian citizens or persons present in Canada. It also ensures that Canada complies with its international obligations.

…

46. If persons suspected of involvement in atrocities do arrive in Canada or are found to be living in Canada, the program partners assess the situation to determine the most appropriate remedy. Remedies include the following:

(a) Criminal proceedings that are based on investigations conducted by the RCMP [Royal Canadian Mounted Police] under the Crimes Against Humanity and War Crimes Act …

(b) Enforcement of the IRPA, including denial of access to and exclusion from refugee protection and removal proceedings;

(c) Citizenship revocation;

(d) Extradition to foreign states and surrender to international tribunals under the Extradition Act …

47. In order to be added to the inventory for criminal investigation, the allegation must disclose personal involvement or command responsibility, the evidence pertaining to the allegation must be corroborated, and the necessary evidence must be able to be obtained in a reasonable and rapid fashion … The files removed from the inventory will be dealt with by using remedies under the IRPA or the Citizenship Act.

In 2012, in its written replies to the issues raised by the Committee against Torture with regard to Canada’s sixth periodic report, Canada stated:

132. Canada has no policy of resorting to the immigration process to remove or expel individuals instead of prosecuting them for crimes committed in Canada. If a foreign national commits a crime in Canada, he or she will be investigated and prosecuted according to the same process followed for Canadians. With respect to crimes committed wholly outside Canada, Canada can prosecute crimes for which universal jurisdiction exists, including torture, genocide, crimes against humanity and war crimes. For more information regarding the prosecution of such crimes, see the response to Question 17 below …

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134. With respect to the exclusions set out in section 98 of the IRPA [the 2001 Immigration and Refugee Protection Act], this provision incorporates the relevant provisions of the 1951 Refugee Convention’s Exclusion Articles. Exclusion under section 98 of the IRPA is used to reject claimants who are found not to be entitled to protection, because they are persons who benefit from residence protection in another country or are persons who have engaged or been complicit in war crimes, crimes against humanity, serious non-political crimes or who are guilty of acts contrary to the purposes and principles of the United Nations.

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Question 17 …

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180. Canada’s War Crimes Program is based on the dual underlying purposes of ensuring that Canada will not become a safe haven for persons involved in war crimes, genocide or crimes against humanity, as well as making an effective contribution to the global effort to reduce and eventually eliminate impunity for such crimes. A committee composed of members of each department of the War Crimes Program reviews and scrutinises all allegations of genocide, crimes against humanity and war crimes, including torture, to ensure compliance with existing and emerging international obligations to extradite or prosecute. In order for a case to be investigated and/or prosecuted through the criminal justice system, a combination of factors needs to be present:

- the necessary evidence can be obtained in a reasonably uncomplicated and speedy fashion.

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182. Should a file not meet the selection criteria for being pursued through the criminal process, the War Crimes Program considers immigration measures, including the following:

- Preventing suspected war criminals from reaching Canada by refusing their immigrant, refugee or visitor applications abroad; and

- Detecting those who have managed to come to Canada and taking the necessary steps to: exclude them from the refugee determination process; prevent them from becoming Canadian citizens; revoke their citizenship should they be detected after acquiring that status; and, ultimately, remove these individuals from Canada.

183. In some cases it is more desirable to remove an individual suspected of having a role in war crimes and/or crimes against humanity through immigration enforcement means so that they may face justice in their country of citizenship. These instances arise when there has been a change in country conditions and there has been recognition of legal reform (e.g., independence of the judiciary) and capacity building within the justice system, and, as a result, these countries are capable of carrying out efficient and effective prosecutions of suspected criminals.

Canada, Written replies by the Government of Canada to the Committee against Torture concerning the list of issues to be taken up in connection with the sixth periodic report of Canada, 2012, §§ 132, 134, 180 and 182–183.